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Powers of the American People, 

Congress, President, and 

The Courts 




MASUJl MIYAKAWA, D.C.L., LL.D. 



Powers 

of the 

American People, Congress, President 

and Courts, According 

to Evolution 

of 

Constitutional Construction 



By 

Masuji Miyakawa, D.C.L., LL.D. 

Lecturer of the Law School of the University of Indiana, and the first Japanese 
Attorney ever admitted to the American bar 



Washington, D. C. 

The Wilkens-Sheiry Co. 

1906 



LIBRARY of CONGRESS 

Two Copies Receive!) 

OCT 11 (906 

^ CoDyrijjnt Entry . 
cuss L XXc,', No 




Copyright 1906 

by 

Masuji Miyakawa 



Published September, 1906 1 



/ 




PREFACE 



No argument would seem to be necessary to prove 
the importance of instructing the students of government 
in the theory and practical character of the powers of the 
People, Congress, the President, and the Courts of the 
United States. 

The impression has largely obtained among students 
of government and others in the Old World that because of 
its newness the American system could present little of 
interest or value to the investigator; it Kas been believed 
also by many that the American system was inimical to 
Old World systems. The fact that hitherto no convenient 
manual of instruction was to be had may have been largely 
responsible for such misconceptions, and if this work shall 
be the means of removing such impressions it will have 
accomplished its purpose. , 

In preparing it, it has been the endeavor of the author 
to set forth the clauses of the Constitution upon which each 
of the four powers rests, as well as the construction that 
has been given them by the authoritative exposition of the 
Courts, or well established practice of the government of 
the United States. 



Washington, D. C, U. S. A. 



By the Author. 



% 



m 



To 

of 
Baltimore 

as a sincere appreciation of many kitidnesses 
this volume is dedicated 



CONTENTS 



Section i. 



Section 2. 



Section 3. 



Section 4. 
Section 5. 



Section 6. 
Section 7. 



ARTICLE I. 

/ THE PEOPLE. 

FAGB 

The People 3 

The People of the United States 3 

The English People 4 

The Japanese People 4 

The iSovereignty 4 

The Sovereignty of the United States . . 5 

The English Sovereignty 5 

The Japanese Sovereignty 5 

The Government 6 

The Government of the People 7 

The Assent of the States 7 

The Union of the (States 9 

The Distribution of Public Functions ... 10 

The American Legislature 13 

The English Legislature 14 

The Legislatures and the People 14 

The Powers 16 

The Powers, per se 17 

The Powers, we see 17 



PAGE 



X CONTENTS. 

ARTICLE II. 

CONGRESS. 

Se^ction 8. The Representatives 21 

The Electors 21 

The OuaHfications of Electors 22 

The Qualifications of the Representatives 23 

Section 9. The Senators 24 

The Electors 25 

The Qualification of Electors 25 

The Qualification of the Senators 26 

Section 10. Taxation 28 

The Power to Tax 31 

The Word "Tax" defined 32 

For Public Purpose 33 

Section 11. Power to Borrow Money 36 

Section 12. Regulation of Commerce 41 

The Commerce Clause Defined 41 

Instrument of Commerce 42 

The Embargo Act 42 

Validity of National Legislation 45 

Validity of State Legislation 47 

Section 13. The Police Power 48 

Federal Tax on Exports and Imports . . 51 

State Tax on Exports and Imports ... 51 

Section 14. Naturalization 54 

Section 15. Citizenship 55 

Section 16. The Statutes of Naturalization... 57 



CONTENTS. XI 



Section i6. Chinese Naturalization 57 

Collective Naturalization 62 

Section 17. Bankruptcy 65 

Federal Bankruptcy Law 66 

State Insolvency Law (ij 

Section 18. To Coin Money 68 

Section 19. Weight and Measure 70 

Section 20. Counterfeiting 72 

Section 21. Post Office and Post Roads 75 

Section 22. Usfe of Mails yd 

Section 23. Copyrights and Patents 80 

Section 24. Patents and Police Power 82 

Section 25. Piracies 87 

Section 26. High Seas 90 

Section 2.y. Highways 93 

Section 28. War 93 

Section 29. Treason 97 

ARTICLE III. 

THE PRESIDENT. 

Section 30. The Qualifications 107 

Tenure of the Office 107 

Investiture 108 

Removal of the President no 

Section 31. Commander in Chief of the Army and 

Navy no 

Section 32. The Responsibility iii 

Section 33. Reprieves and Pardons 112 



Xll CONTENTS. 

PAGE 

Se^ction 34. Treaty Making 118 

Section 35. Conflict of Treaty and Act of Congress 123 

Section 36. Treaty and Statute of States 124 

Section 37. Message to Congress 128 

Section 38. Appointment and Removal 129 

Restriction 130 

Independence 133 

Cooperation of the Senate and the Presi- 
dent 134 

ARTICLE IV. 

THE COURTS. 

Section 39. Potentially Co-extensive 141 

The Good Behavior 142 

Independence 143 

Section 40. The Judicial Power of the United States 144 

Jurisdiction 144 

Original Jurisdiction 147 

Appellate Form 148 

Exclusive Jurisdiction 149 

Section 41. Concurrent Jurisdiction with the States 149 
Section 42. Cases Affecting Ambassadors, Ministers 

and Consuls 152 

Section 43. Cases of Admiralty and Maritime Juris- 
diction 158 

Section 44, Public River, Ports, Havens, etc 160 

Section 45. Removal from 'State to Federal Courts. . 161 

Section 46. State Courts Jurisdiction 163 



CONTENTS. XIU 

PAGE 

Section 47. Controversies to which the United States 

is a Party 165 

Section 48. Controversies between two or more 

States 166 

Questions of Boundary 167 

Jurisdiction Refused 170 

Section 49. Controversies between a State and Citi- 
zens of another State 171 

Section 50, The Court of no Country can Execute 

the Penal Laws of Another. ... 171 

Section 51. The word "Controversies" 175 

Section 52. Diverse Citizenship 176 

Section 53. Suit against States 178 

Exclusive Jurisdiction 179 

The nth Amendment to the Constitution 180 

Section 54 A Citizen can Sue for Himself 181 

Section 55. Religious Liberty 182 

Section 56. Unreasonible Searches and Seizures. . 186 

Section 57, Involuntaiy Servitude 189 

Section 58. Due process of Law 193 

Section 59. Equal protection of Law 196 

Section 60. Rights of Citizens, Strangers and Aliens 198 

Section 61. Judiciary is the Final Authority 206 

Judicial Construction of the Constitution 206 

Legislature Construction 207 

Executive Construction 207 



xiv CONTENTS. 

APPENDIX I. 

BEFORE THE PROMULGATION OF THE CONSTITUTION. 



PAGE 



The Grecian Republics 211 

The Roman Constitution 213 

The Teutonic Family of Nations 215 

Liberty, Birthright of Englishman 217 

Reformation 218 

Colonization in the New World 219 

The Eirst Continental Congress 230 

Revolutionary War 231 

The Declaration of Independence 232 

The Constitutional Convention 234 

APPENDIX II. 

Constitution of the United States 239 

In Addition to, and Amendment of, the Constitution of 

the United States 250 

Index 257 



LIST OF ILLUSTRATIONS 

The Author Frontispiece ^ 

PAGE 

The U. S. Capitol ii ' 

Hall of the House of Representatives 29 •/ 

The U. S. Senate Chamber 39 

The Members of the House of Representatives 49 ' 

The U. S. -Senators 59 ' 

The Members of the House of Representatives yy '^' 

The U. S. Senators 95 '' 

The White House 106 " 

The U. S. Presidents (from Washington to Taylor) . . 115 

The U. S. Presidents (from Fillmore to Roosevelt) . . 125 

The Members of the Roosevelt Cabinet 135 

The Chief Justice Marshall 145 - 

The U. S. Supreme Court Chamber I55 

The Chief and Associate Justices of the U. S. Supreme 

Court 173 

The U. S. and State Judges 191 



THE PEOPLE 



THE PEOPLE 



ARTICLE I. 



"We, the people of the United States, in order to have a more 
perfect union, establish justice, insure domestic tranquility, provide 
for the common defence, promote the general welfare, and secure 
the blessings of liberty to ourselves and our posterity, do ordain and 
establish this constitution for the United States of America." — 
Preamble of the Constitution of the United States. 

Section i. The prominent term "the people" from 
the American standpoint is entirely different from the 
nature of the same title as used in Asiatic and European 
countries. It has a distinct and different meaning, which 
Doctors of Law in those countries, no matter how well 
versed in the principles of laws, can not apprehend until 
they were in the spirit of the American understanding of 
it. The word the "people" of the United States in its 
proper legal acceptation, means the whole mass of male 
and female citizens constituting the political unit. It is 
identified as the political entity and artificial person, and 
not a majority of the individuals composing society and 
those persons who have the right to vote. 

If the Professor of. Laws will turn to the Commen- 
taries of Blackstone, he will find at once that under the 

3 



4 THE PEOPLE, 

head "People," the word "People" is used in the same 
sense as subjects and not in the sense of the body politic 
or a part of it. Nowhere will he find "the people" as the 
American will find in the laws of his country. In fact, 
in England there is no people from a strict legal con- 
templation, Bryce emphasized that when he said that 
"the British Parliament had always been, and remains 
now, a sovereign and constituent assembly. It can make 
and unmake any and every law, change the form of gov- 
ernment or the successor to the crown, interfere with the 
course of justice, extinguish the most sacred private 
rights of the citizens," The word "people," according 
to the commentaries of Ito, has a singularly interesting 
significance. The Komin or the "people" of Japan is 
nothing more than Omitakara or the "public treasure." 
The distinguished commentators or rather introducers of 
the Japanese constitution say: "It is to be noticed that 
there has been instances of the people calling themselves 
the Emperor's treasures, as may be seen from the fol- 
lowing poem: 'Happy are we. His Majesty's treasure, 
to have an ample recompense for our earthly existence 
in having been born at an epoch so full of prosperity and 
^lory.' " 

Sec, 2, The full meaning of the term "the people" in- 
cludes what is called sovereignty. This necessary impli- 
cation suggests the important question of what is termed 



THE PEOPLE. 5 

"the sovereignty of the people" of the United States. 
This question is absolutely practical in America, and 
theoretical on the other sides of the Pacific and Atlantic. 
The sovereignty or supreme power resides in the body of 
the people in the American contemplation. The Ameri- 
can idea is based upon the thought that the government 
is a mere agency established by the people for the exer- 
cise of those powers which reside in them, and no portion 
of sovereignty resides in government. 

The English jurists believe that the jura summi im- 
perii, or right of sovereignty, resides in those hands in 
which the exercise of the power of making laws is placed. 

The Empire of Japan "shall be reigned over and gov- 
erned by a line of Emperors unbroken for ages eternal," ' 
which the compilors construe as follows: By "reigned 
over and governed" is meant that "the Emperor on His 
throne combines in Himself the sovereignty of the state 
and the government of the country and of his subjects." 
The compilors quote the declaration of the Japanese Em- 
peror at the time of his succession to the throne: "We 
shall reduce the Realm to tranquility and bestow Our lov- 
ing care upon Our beloved subjects." 

It will be admitted by all that sovereignty is not recog- 
nized in American law in the same sense in which it is 
said to exist under the Japanese and English Constitu- 

^ Art. I, Japanese Constitution. 



6 THE PEOPLE. 

tions, for one at the other side of the Pacific exists as a 
divine and sacred right in the Emperor, who shall not be 
made a topic of derogatory comment nor one of discus- 
sion, while the other at the other side of the Atlantic ex- 
ists as a right, a substantial right, an absolute right in a 
corporate body, a person, i. e., parliament. 

The first Chief Justice, Jay, of the U. S. Supreme 
Court, said what was true then and still remains to be 
true when he drew the line of demarkation between 
the sovereignty of the people and those of the other sides 
of both oceans : "In Europe the sovereignty is generally 
ascribed to the princes; here it exists with the people; 
there the sovereign actually administers the government ; 
here, never in a single instance. Our governors are the 
agents of the people, and at the most stand in the same 
relation to their sovereign in which regents in Europe 
stand to their sovereigns. Their princes have personal 
powers, dignities and preeminence, our rulers have none 
but official; nor do they partake in the sovereignty 
otherwise or in any other capacity, than as private citi- 
zens. 

Sec. 3. The inhabitants of the colonies, by the Declar- 
ation of Independence that "all men are created equal," 
and "that governments must derive their just powers 
from the governed" destroyed all the theories of sover- 
^ 2 Dall. 472. 



THE PEOPLE. 7 

eignty and substituted by the same instance the new, 
"that the sovereignty derives all its just powers from the 
consent of the individual" as a political fact, as a practi- 
cal fact and as a legal fact. 

In the formation of the American government those 
who assumed to act at the Constitutional Convention to- 
ward framing the greatest national instrument have as- 
sumed to act in the name of the "people." When it came 
from their hands it was an unauthorized proposition, but 
when it was submitted to the people for adoption, assent 
and ratification and not published and subscribed, the peo- 
ple acted upon it in the only manner in which they can act 
safely, effectively on such a subject. The second Chief 
Justice, Marshall, made clear the meaning of "the people" 
in the preamble of the Constitution when he said that 
from these conventions the Constitution derives its whole 
authority. The government proceeds directly from the 
people; is ordained and established in the name of the 
people; and is declared to be ordained in order to form 
a more perfect union, establish justice, insure domestic 
tranquility and secure the blessings of liberty to them- 
selves and to their posterity. The assent of the States in 
their sovereign capacity, is implied in calling a convention 
and thus submitting that instrument to the people. But 
the people were at perfect liberty to accept or reject it; 
and their act was final. It required not the affirmation of 



8 THE PEOPLE. 

the State and could not be negatived by the State govern- 
ments. The Constitution when thus adopted was of com- 
plete obligation, and bound the State sovereignties. It 
has been said that the people had already surrendered 
all their powers to the State sovereignties and had nothing 
more to give. But, surely, the question whether they may 
resume and modify the powers granted to government 
does not remain to be settled in the United States. Much 
more might the legitimacy of the general government be 
doubted had it been created by the States. The powers 
delegated to the State sovereignties were to be exercised 
by themselves, not by a distinct and independent sov- 
ereignty erected by themselves. To the formation of a 
league, such as the confederation, the State sovereignties 
were certainly competent. But when, "in order to form a 
more perfect union," it was deemed necessary to change 
this alliance into an effective government, possessing great 
and sovereign powers, and acting directly on the people's 
authority, the necessity of referring it to the people, and 
of receiving the powers directly from them was felt and 
acknowledged by all. The government of the Union is 
then emphatically and truly a government of the people. 
In form and substance it emanates from them. Its pow- 
ers are granted by them, and are to be exercised directly 
on them and for their benefit.^ 

^ McCulloch V. Maryland, 4 Wheaton 316; 4 Curtis 415. 



THE PEOPLE, 9 

Sec. 4. Now the unwritten understanding of the mean- 
ing of "to form a more perfect Union" has been judic- 
ially determined, and such judicial conclusions have 
been accepted. It is unnecessary to go far into the search. 
It will suffice to quote the following well known decision 
of the United States Supreme Court: 

"The Union of the States never was a purely artificial 
and arbitrary relation. It began among the colonies, and 
grew out of common origin, mutual sympathies, kindred 
principles, similar interests, and geographical relations. 
It was confirmed and strengthened by the necessities of 
war, and received definite form, and character, and sanc- 
tion from the Articles of Confederation. By these the 
Union was solemnly declared to be perpetual. And when 
these Articles were found to be inadequate to the exigen- 
cies of the country, the Constitution was ordained 'to 
form a more perfect Union,' It is difficult to convey the 
idea of indissoluble unity more clearly than by these 
words. What can be indissoluble if a perpetual Union, 
made more perfect, is not ? But the perpetuity and indis- 
solubility of the Union, by no means implies the loss of 
distinct and individual existence, or of the right of self 
government by the States. Under the Article of Confed- 
eration each State retained its sovereignty, freedom and 
independence, and every power, jurisdiction and right not 
expressly delegated to the United States, under the Con- 



lO THE PEOPLE. 

stitution, though the powers of the States were much re- 
stricted, still, all powers not delegated to the United 
States, nor prohibited to the States, are reserved to the 
States respectively, or to the people." 

We have already had occasion to notice the expres- 
sion "the people of each State compose a State, having its 
own government, and endowed with all the functions es- 
sential to separate and independent existence," and that 
without States in the Union there could be no such polit- 
ical body as the United States. Not only, therefore, can 
there be no loss of separate and independent autonomy to 
the States through their union under the Constitution, but 
it may with reason be said that the preservation of the 
States and the maintenance of their governments are as 
much within the design and care of the Constitution as 
the preservation of the Union and the maintenance of 
the national government. The Constitution in all its 
provisions looks to an "indestructible Union composed of 
indestructible States." ' 

Sec. 5. We are safe in asserting that the principles un- 
derlying the distribution of public functions between dif- 
ferent bodies was not invented in the United States. The 
partition of the powers of government existed in Eng- 
land at the time of the American Revolution. While 
this is true, it is no less true that the proposition of the 

^ Texas v. White, 7 Wall. 7, 700-726. 



THE PEOPLE. 13 

American Constitution to separate, yet preserve coordi- 
nation and interdependence of the several branches of 
government, was unique and apparently different from 
the government of Great Britain. The legal, practical 
and fundamental difference has been worked out during 
the time that the American Constitution has been in 
force. Hence, we will, in the Articles that follow, go 
back to the olden times and reason out the idea that at the 
time of the framing of the American Constitution, the 
Senators represent the States ; the Members of the House 
of Representatives, on the other hand, represent local 
districts in the United States, the idea being to give 
to the people of every locality equal representation ac- 
cording to numbers, distributing the burdens of the 
government in accordance with the voice of its councils. 
The classification of the American power of govern- 
ment, with its peculiar delicacies, has been well estab- 
lished. The following have been pointed out : The leg- 
islative power, which is the power to make the laws and 
to alter them at discretion; the executive, which is the 
power to see that the laws are duly executed and en- 
forced; and the judicial, which is the power to construe 
and apply the law when controversies arise concerning 
what has been done or omitted under the Constitution. 
Legislative power, according to the American legal un- 
derstanding, deals mainly with the future, and executive 



14 THE PEOPLE. 

power with the present, while judicial power is retro- 
spective, dealing only with acts done or threatened, prom- 
ises made and injuries suffered. The opinion of Chief 
Justice Marshall in this respect will conclude the exposi- 
tion of this idea. The expounder of the American Con- 
stitution said : "The difference between the departments 
undoubtedly is, that the legislative makes, the executive 
executed, and the judiciary construes the law; but the 
maker of the law may commit something to the discretion 
of the other departments." ' 

However, little analogy exists between the manner of 
derivation and the powers and rights of the British Par- 
liament and the American Congress. On the contrary, 
they are almost opposite in nature and degree. Mr, Jus- 
tice Harlan, in an important case on this point in the 
United States Supreme Court, said: "In view of the 
essential difference between the American and English 
government in respect of the source and depositories of 
power, the decisions of the English courts on this subject 
are entitled to but little credit."' 

Sec. 6. Keeping always in view that paradoxical yet 
fundamental difference of the idea underlying the dis- 
tribution of the powers of the governments of Great 
Britain and the United States, let us proceed a step fur- 
ther, so that we will see the understandings of the legis- 

^ Nayman v. Southard, lo Wheat, i, 46. 
^ Tindal v. Wesley, 167 U. S. 204-214. 



THE PEOPLE. 15 

lative powers of the British ParHament, the Japanese 
Diet, and the American Congress. 

In the British legal theory, between the parHament and 
the people at large there is no legal distinction, because 
the whole plentitude of the peoples' rights and powers 
resides in it, just as if the whole nation were present 
within the chamber where it sits. Practically, the British 
Parliament is the depository of the authority of the na- 
tion, and is therefore omnipotent. The Japanese Diet, 
or parliament, on the other hand, has no share whatso- 
ever in the sovereign power. It is true that it takes part 
in legislation and also has power to deliberate upon laws, 
but none to determine them. The Japanese compilors of 
the Imperial Constitution say that the Imperial Diet has 
the certain responsibility of keeping a supervision over 
the administration. We admit that this be true. But 
we, who claim the right of professional knowledge, all 
agree that such power is indirect. The legislative power 
in the Diet is founded on the unique proposition to 
merely serve the political machinery for the sake of a con- 
stitutional government. Nowhere in the great charter 
of Japanese liberty can it be found that the legislative 
powers are the original authority or omnipotent, as those 
of the British government, nor have they delegated au- 
thority or inherent right to accomplish all objects within 
the orbit of the legislative department, as those of the 



1 6 THE PEOPLE. 

American government. All the different legislative pow- 
ers are fundamentally and practically vested in the Most 
Exalted Personage, His Majesty, the Emperor of Japan, 
the Creator of the Imperial Constitution, the source and 
fountain head of all political life of great Japan herself. 
Sec. 7. When all the powers of sovereignty are exer- 
cised by a single person, as is the case in Japan, or body, 
as in England, who alone makes laws, determines com- 
plaints of their violation, and attends to their execution, 
the question of a distribution of powers can have only a 
theoretical importance, for the obvious reason that noth- 
ing can depend upon it, which can have practical influ- 
ence upon the happiness and welfare of the people. But, 
inasmuch as a government with all its powers thus con- 
centrated must of necessity be an arbitrary government, 
in which passion and caprice is as likely to dictate the 
course of public affairs as a sense of right and justice, 
it is a maxim in political science that in order to insure 
due recognition and protection of rights, the powers of 
government must be classified according to their nature, 
and each class intrusted for exercise to a different de- 
partment of the government. This arrangement gives 
each department a certain independence, which operates as 
a restraint upon such action of the other as might encroach 
on the rights and liberties of the people, and makes it 
possible to establish and enforce guaranties against at- 



THE PEOPLE. 17 

tempts at tyranny. After all, we must confess the truth, 
that the legislative, the executive and the judicial powers 
of the United States are subjects broader in their extent 
than the scope of any one man's treatment and reach. 

It may be said that material so abundant and volumi- 
nous should be approached by a logical and regular 
method, otherwise no concise and clear presentation of 
the fundamental principles of the subject should be at- 
tempted. It may also be said that if the analysis is just 
and the distinction clear, a broader conception of the sub- 
ject may be obtained than by an exhaustive presentation 
of all. Neither is our plan. It is beyond the power of 
man to perceive and materialize either process. All that 
we venture is to try to show what we understand the 
Legislative, the Executive, and the Judicial powers of 
the United States to he, as applied to the daily affairs and 
transactions of life. For the powers, per se, is the same 
from the beginning to the end, but the powers which we 
see is the unwritten understanding of the written Con- 
stitution, interpreted, construed and applied by the proper 
tribunals. 



CONGRESS 



CONGRESS 



ARTICLE II. 



"All legislative powers herein granted shall be vested in a Con- 
gress of the United States, which shall consist of a Senate and a 
House of Representatives." — Article I, Section i, the Constitution. 

Section 8. The aim of every political constitution is, 
or ought to be, first, to obtain for rulers, men who pos- 
sess most wisdom to discern, and most virtue to pursue, 
the common good of the society; and, in the next place, 
to take the most effectual precautions for keeping them 
virtuous, whilst they continue to hold their public trust. 
The elective mode of obtaining rulers is the characteristic 
policy of republican government. The means relied on in 
this form of government for preventing their degeneracy 
are numerous and various. The most effectual one, is 
such a limitation of the term of appointments as will 
maintain a proper responsibility to the people/ 

The electors of the representatives are not the rich, more 
than the poor; not the learned more than the ignorant; 
not the haughty heirs of distinguished names more than 
the humble sons of obscurity and unpropitious fortune. 
' No. LVII Federalists. 



22 CONGRESS. 

The electors are to be the great body of the people of 
the United States. They are to be the same who exercise 
the right in every State of electing the correspondent 
branch of the legislature of the State. 

The objects of popular choice are to be every citizen 
whose merit may recommend him to the esteem and con- 
fidence of his country. No qualification of wealth, or 
birth, or religious faith, or of civil profession, is permit- 
ted to fetter the judgment or disappoint the inclination 
of the people. 

If we consider the situation of the men on whom the 
free suffrage of their fellow citizens may confer the rep- 
resentative trusts, we shall find it involving every security 
which can be devised or desired for their fidelity to their 
constituents. 

In the first place, as they will have been distinguished 
by the preference of their fellow citizens, we are to pre- 
sume that in general they will be somewhat distinguished 
also by those qualities which entitle them to it, and which 
promise a sincere and scrupulous regard to the nature of 
their engagements. In the second place, they will enter 
into the public service under circumstances which can 
not fail to produce a temporary affection at least to their 
■constituents. There is in every breast a sensibility to 
marks of honor, of favor, of esteem, and of confidence, 
which, apart from all considerations of interest, is some 



CONGRESS. 23 

pledge for grateful and benevolent returns. Ingratitude 
is a common topic of declamation against human nature; 
and it must be confessed that instances of it are but too 
frequent and flagrant, both in public and private life. 
But the universal and extreme indignation which it in- 
spires is itself a proof of energy and prevalence of the 
contrary sentiment. In the third place, those ties which 
bind the representative to his constituents are strength- 
ened by motives of a more selfish nature. His pride and 
vanity attach him a share in its honors and distinctions. 
Whatever hopes or projects might be entertained by a 
few aspiring characters, it must generally happen that a 
great proportion of the men deriving their advancement 
from their influence with the people would have more 
to hope from a preservation of their favor than from 
innovation in the government subservive of the authority 
of the people. In the fourth place, all these securities 
would be found sufficient with the restraint of frequent 
elections. The House of Representatives is so constituted 
as to support in the members an habitual recollection of 
their dependence on the people. Before the sentiment 
impressed on their minds by the mode of their elevation 
can be effaced by the exercise of power, they will be com- 
pelled to anticipate the moment when their power is to 
cease, when their exercise of it is to be reviewed, and 
when they must descend to the level from which they are 



24 CONGRESS. 

raised; there forever to remain, unless a faithful dis- 
charge of their trust shall have established their title to 
a renewal of it. 

We will add, as a fifth circumstance in the situation of 
the House of Representatives restraining them from op- 
pressive measures, that they can make no law which will 
not have its full operation on themselves and their friends, 
as well as on the great mass of the society. This has 
always been deemed one of the strongest bonds by which 
human policy can connect the rulers and the people to- 
gether. It creates between them that communion of in- 
terest and sympathy of sentiment, of which few gov- 
ernments have furnished examples; but without which 
every government degenerates into tyranny. If it be 
asked what is to restrain the House of Representatives 
from making legal discriminations in favor of themselves 
and a particular class of the society, we answer, the 
genius of the whole system ; the nature of just and con- 
stitutional laws; and above all, the vigilant and manly 
spirit which actuates the people of America; a spirit 
which nourishes freedom and in return is nourished by 
it. If this spirit shall ever be so far debased as to toler- 
ate a law not obligatory on the legislature, as well as on 
the people, the people will be prepared to tolerate any- 
thing but liberty. 

Sec. 9. I enter next on the examination of the Senate. 



CONGRESS. 25 

The qualification of Senators, as distinguished from 
those of Representatives, consists in a more advanced 
age, a longer period of citizenship, and a longer ap- 
pointment of office. A Senator must be thirty years of 
age at least; as a Representative's must be twenty-five. 
The former must have been a citizen nine years ; as seven 
years are required for the latter. And the duration of 
the office of Senator is six years while that of Repre- 
sentative is two years. 

In the first place, the propriety of these distinctions is 
explained by the nature of the senatorial trust, which, 
requiring greater extent of information and stability of 
character, requires, at the same time, that the Senator 
should have reached a period of life most likely to sup- 
ply these advantages, and which, participating immedi- 
ately in transactions with foreign nations, ought to be 
exercised by none who are not thoroughly weaned from 
the prepossessions and habits incident to foreign birth 
and education. The term of nine years appears to be a 
prudent mediocrity between a total exclusion of adopted 
citizens, whose merits and talents may claim a share in 
the public confidence, and an indiscriminate and hasty 
admission of them, which might create a channel for 
foreign influence on the national council. 

In the second place, it is equally unnecessary to dilate 
on the appointment of Senators by the State legislature. 



26 CONGRESS. 

Among the various modes which might have been de- 
vised for constituting this branch of the government, 
that which has been proposed by the convention ' is prob- 
ably the most congenial with the public opinion. It is 
recommended by the double advantage of favoring a se- 
lect appointment and of giving to the State government, 
as must secure the authority of the former and may form 
a convenient link between the two systems. 

In the third place, the equality of representation in the 
Senate is another point which, being evidently the result 
of compromise between the opposite pretentions of the 
large and the small States, does not call for much dis- 
cussion. That the equal vote allowed to each State is 
at once a constitutional recognition of the portion of sov- 
ereignty remaining in the individual State, and an in- 
strument for preserving that residuary sovereignty. An- 
other advantage accruing from this ingredient in the con- 
stitution of the Senate is, the additional impediment it 
must prove against improper acts of legislation. No law 
or resolution can now be passed without the concurrence 
first of a majority of the people, and then of a majority 
of the States. 

In the fourth place, the duration of their appointments 
come next to be considered. The mutability in the pub- 
lic councils arising from a rapid succession of new mem- 

' No. LXI The Federalists. 



CONGRESS. 27 

bers, however qualified they may be, points out in the 
strongest manner the necessity of some stable institution 
in the government. Every new election in the States is 
found to change one-half of the Representatives. From 
this change of men must proceed a change of opinions, 
and from a change of opinions a change of measures. 
But a continual change even of good measures is incon- 
sistent with every rule of prudence and every prospect of 
success. The remark is verified in private life and be- 
comes more just as well as more important in national 
transaction. Another effect of public instability is the 
unreasonable advantage it gives to the sagacious, the 
enterpising, and the moneyed few, over the industrious 
and uninformed mass of the people. But the most deplor- 
able effect of all is that diminution of attachment and rev- 
erence which steals into the hearts of the people towards 
a political system which betrays so many marks of infirm- 
ity and disappoints so many of their flattering hopes. 
No government, any more than an individual, will long 
be respected without being truly respectable, nor be truly 
respectable without possessing a certain portion of order 
and stability. 

In the fifth place, we add. that there may be many 
who will say that a Senate appointed not immediately 
by the people and for the term of six years, must gradu- 
ally acquire a dangerous pre-eminence in the govern- 



28 CONGRESS. 

ment and finally transform it into a tyrannical aristocracy. 
To this we answer, in the language of Mr. James Madi- 
son who, with Alexander Hamilton and John Jay, cham- 
pioned the cause for the adoption of the Constitution: 
"Before such a revolution can be effected, the Senate, it is 
to be observed, must in the first place corrupt itself ; must 
next corrupt the State legislature; must then corrupt the 
House of Representatives; and must finally corrupt the 
people at large. It is evident that the Senate must be 
first corrupted before it can attempt an establishment 
of tyranny. Without corrupting the legislature it can 
not prosecute the attempt, because the periodical change 
of members would otherwise regenerate the whole body. 
Without exerting the means of corruption with equal 
success on the House of Representatives, the opposition 
of that co-equal branch of the government would inevit- 
ably defeat the attempt ; and without corrupting the peo- 
ple themselves a succession of new Representatives would 
speedily restore all things to their pristine order." 

Having examined the unique systems of the House of 
Representatives and the Senate, let us now proceed for 
the investigation of the powers. 

Sec. id. In the specific enumeration of national powers 
it is first declared that "the Congress shall have the power 
to lay and collect taxes, duties, imports, and excises, to 
pay the debts, and provide for the common defense and 



CONGRESS. 31 

general welfare of the United States; but all duties, im- 
ports and excises shall be uniform throughout the United 
States." ' ■ 

The power to tax is an incident of sovereignty, and is 
co-extensive with the subjects to which the sovereignty- 
extend. It is unlimited in the range, acknowledging in 
its very nature no limit so that security against its abuse 
is to be found only in the responsibility of the legislature 
which imposes the tax to the constituency who are to pay 
it.^ 

This specific power of the national legislature is vitally 
important for the maintenance of the government; want 
of this power was chief among the causes for the failure 
of the old confederacy. 

It was also this power, misapplied and arbitrarily im- 
posed, which was the principle cause for the separation 
of the English colonies in North America from the 
mother country. Chief Justice Bradley of the Supreme 
Court of the United States in this regard said : 

"England has no written constitution, it is true, but it 
has an unwritten one, resting on the acknowledged 
and frequently declared privileges of parliament and the 
people, to violate which in any material respect would 

'Art. I, Sec. 8, U. S. Const. 3 Gallatin's Writings (Adams' Ed.). 
Pollock V. Farmers' Loan and Trust Co., 157 U. S. 429-569. 

^ Veazie Bank v. Fenno, 8 Wall. 533. Scholey v. Rew., 23 Wall. 
331. Hylton V. United States, 3 Dall. 171. Income Tax case, 158 
U. S. 601. 



32 CONGRESS. 

produce a revolution in an hour. A violation of one of 
the fundamental principles of that constitution in the 
colonies, namely, the principle that recognizes the prop- 
erty of the people as their own, and which, therefore, 
regards all taxes for the support of government as gifts 
of the people through their representatives, and regards 
taxation without representation as subversive of free 
government, was the origin of our own revolution."^ 

The word "taxes" is defined in the most enlarged 
sense as embracing all the regular impositions made by 
the government upon the persons, property, privileges, 
occupations, and enjoyments of the people for the pur- 
pose of raising public revenue. ''Duties, imposts and ex- 
cises" imposed for this purpose are in a strict sense 
"taxes." But the word "taxes" is often used in contra- 
distinction to these levies; it conduced to certainty to 
name them separately. The terms "duties" and "im- 
posts" are nearly synonymous, and are usually applied 
to the levies made by the government on the importa- 
tion or exportation of commodities; while the term "ex- 
cises" is applied to the taxes laid upon the manufacture, 
sale or consumption of commodities within the country, 
and upon licenses to pursue certain occupations.^ 

There is nothing which can be the subject of property 

* Slaughter House cases, i6 Wall. 36-115. 

^Loan Association v. Topeka, 20 Wall. 655, 664; State v. Western 
Union Telegraph Co., 7$ Me. 518. Cooley on Taxation, pp. 3, 23. 



CONGRESS. 33 

that can not be the subject of taxation. Of all burdens 
imposed upon mankind that of grinding taxation is the 
most cruel. It is not taxation that a government should 
take from one the profits and gains of another. That is 
taxation which compels one to pay for the support of the 
government from his own gains and of his own property. 

Every one admits and no one denies that the question 
of the understanding of "taxation," in the American 
legal contemplation, we must approach with hesitation. 

In construing the American understanding of taxation, 
Mr, Justice Miller delivered the opinion of the United 
States Supreme Court. He said : "It must be conceded 
that there are such rights in every free government be- 
yond the control of the State. A government which 
recognized no such rights, which held the lives, the lib- 
erty and the property of its citizens at all times to the 
absolute disposition and unlimited control of even the 
most democratic depository of power, is after all but a 
despotism. It is true, it is a despotism of the many, of 
the majority, if you please to call it so, but it is none the 
less a despotism. It may be doubted if a man is to hold 
all that he is accustomed to call his own, all in which he 
has placed his happiness, and the security of which is es- 
sential to that happiness, under the unlimited dominion of 
others, whether it is not wiser that this power should be 
held by one man than by many." 



34 CONGRESS. 

The theory of American government, State and Na- 
tional, is opposed to the deposit of unhmited power any- 
where. The executive, the legislative and the judicial 
branches of these governments are all of limited and de- 
fined powers. 

There are limitations on such power, which grow out 
of the essential nature of all free governments. These are 
implied reservations of individual rights, without which 
the social compact could not exist, and which are respected 
by all governments entitled to the name. No court, for 
instance, would hesitate to declare void a statute which 
enacted that A and B, who were husband and wife to 
each other, should be so no longer, but that A should there- 
after be the husband of C and B the wife of D ; or which 
would enact that the homestead now owned by A should 
no longer be his but the property of B.'' 

Of all the powers conferred upon government that of 
taxation is most liable to abuse. Given a purpose or sub- 
ject for which taxation may be lawfully used, and the ex- 
tent of its exercise is in its very nature unlimited. It is 
true that express limitations on the amount of tax to be 
levied or the things to be taxed may be imposed by con- 
stitution or statute, but in most instances for which taxes 
are levied, as the support of government, the prosecution 
of war, the national defense, any limitation is unsafe. 

^ Whitney v. Fond du Lac, 25 Wis. 188; Cooley on Constitutional 
Limitation, 129, 175, 487; Dillon on Municipal Corporation, 587. 



CONGRESS. 35 

The entire resources of the people should in some in- 
stances be at the disposal of the government. 

The power to tax is, therefore, the strongest, the most 
prevailing of all the powers of government, reaching di- 
rectly or indirectly to all classes of the people.' It was 
said by Chief Justice Marshall, that the "power to tax 
is the power to destroy." A striking instance of the truth 
of this proposition is seen in the fact that the existing 
tax of ten per cent, imposed by the United States on the 
circulation of all other banks than the national banks, 
drove out of existence every State bank circulation within 
a year or two after its passage. This power can as readily 
be employed against one class of individuals as in favor 
of another, so that one class may be ruined and the other 
given unlimited wealth and prosperity, if there is no 
implied limitation to the uses for which the power may be 
exercised. 

To lay, with one hand, the power of government on 
the property of the citizen, and, with the other, to bestow 
it upon favored individuals to aid private enterprise and 
build up private fortunes, is none the less a robbery be- 
cause it is done under the forms of law and is called tax- 
ation. This is not legislation. It is a decree under legis- 
lative forms. Nor is it taxation. A "tax," says Web- 
ster's dictionary, "is a rate or sum of money assessed on 

^ Springer v. United States, 132 U. S. 586 ; Hylton v. U. S., 3 
Dall 171. Pacific Ins. Co. v. Soule, 7 Wall. 433. 



36 CONGRESS. 

the person or property of a citizen by government for the 
use of the nation or State." "Taxes are burdens or 
charges imposed by the legislature upon persons or prop- 
erty to raise money for public purposes."^ 

Coulter, Judge of Pennsylvania, in the case of North- 
ern Liberties against St. John's Church, says very for- 
cibly, "I think the common mind has everywhere taken 
in the understanding that taxes are a public imposition, 
levied by authority of the government for the purpose 
of carrying on the government in all its machinery and 
operation — that they are imposed for a public purpose." 

We have established, we think, beyond cavil that there 
can be no lawful tax which is not laid for a public pur- 
posed 

Sec. II. It is further provided in the Constitution that 
Congress shall have power "to borrow money on the 
credit of the United States."^ The understanding is 
well expressed by Chief Justice Chase when he rendered 
the opinion of the United States Supreme Court in an- 
swering the question "Were the obligations of the United 
States, known as certificates of indebtedness, liable to 
State taxation?" The jurist went on to say that the 
authority to borrow money on the credit of the United 
States is, in the enumeration of the powers, expressly 

* Cooley on Constitutional Limitation, 479. Veagie Bank v. Fenno, 
8 Wall. 533- 
^ Loan Association v. Topeka, 20 Wall. 655. 
^ United States Constitution, Article I, 8. 



CONGRESS. 37 

granted by the Constitution, second in place and only sec- 
ond in importance to the authority to lay and collect 
taxes. Both are given as means to the exercise of the 
functions of government under the Constitution; and 
both, if neither had been expressly conferred, would be 
necessarily implied from other powers. For no one will 
assert that without them the great powers could be exer- 
cised at all."^ The Chief Justice continued: "The prin- 
ciple of exemption is, that the States can not control the 
national government within the sphere of its constitu- 
tional powers — for there it is supreme — and can not tax 
its obligations for payment of money issued for purposes 
within that range of powers, because such taxation nec- 
essarily implies the assertion of the right to exercise such 
control." This opinion was supported with reference to 
the construction made by Chief Justice Marshall, who 
said that the American people have conferred the 
power of borrowing money upon their government, and 
by making that government supreme have shielded its ac- 
tion in the exercise of that power, is incompatible with a 
restraining or controlling power, and the declaration that 
no such restraining or contolling power shall be exer- 
cised."* 

In the case of Bank v. Supervisors, the application of 
the understanding is made extensively yet clearly. In 

* The Banks v. the Mayor, 7 Wall. 16. 

^ Weston V. the City of Charleston, 2 Pet. 449. 



38 CONGRESS. 

this case the United States notes became the subject of 
discussion and construction in regard to State taxation. 

In the contentions of the parties against the specific 
power of Congress, the important and interesting point 
was this, that as far as the credit of the United States 
was involved in the issue of these notes, no greater re- 
sponsibiHty was assumed by any government in coining 
or otherwise affixing a stamp to metal, and affixing to it 
a certain nominal value, although by mixing or debasing 
the metal, its real value, in use or exchange, may have 
been totally destroyed. The acts in question did but 
endeavor to confer a prescribed value on certain stamped 
paper, which they compelled the citizens of the United 
States to take in payment of all debts due, or to become 
due by the government to them, or by them to the govern- 
ment, or to one another. By this means, instead of bor- 
rowing money, Congress made money, and rendered bor- 
rowing unnecessary. The protection from State interfer- 
ence accorded by the Constitution in the exercise by the 
government of the power of borrowing, can not be in- 
voked in such a case. 

In this contention, however, the United State Supreme 
Court decided that ''the notes issued under the acts 
of Congress, intended to circulate as money, and actually 
constituting, with the national bank notes, the ordinary 
circulating medium of the country, are moreover, obliga- 



CONGRESS. 41 

tions of the national government, and exempt from State 
taxation." ' 

Sec. 12. The Congress is further empowered to "regu- 
late commerce with foreign nations among the several 
States and with the Indian Tribes." 

To thoroughly understand the commerce clause of the 
Constitution it becomes necessary to discuss and construct 
the powers of the State imposing tax, enacting quarantine 
laws, harbor regulation, exacting licenses, prohibiting the 
sale of certain noxious goods or articles, prohibiting the 
transportation through the State of animals or persons 
infected with disease, or prohibiting the entry into the 
State of persons deemed unfit by the people of the State 
to mingle with them. So that we may keep in view such 
as these powers and the limitations to these powers when 
they come in contact with the commerce clause in the 
Federal Constitution, while at the same time, discuss the 
understanding of the nature of the power conferred by 
the commerce clause and the extent of its exercise by the 
American Congress, which is the proper and main under- 
taking of the present work. 

The conspicuous words in the commerce clause are 

"to regulate commerce." They at once suggest the extent 

of power which is to "regulate," and the subject of the 

regulation which is "commerce." The United States 

^ Bank v. Supervisor, 7 Wall. 26, 31. 



42 CONGRESS. 

Supreme Court had from time to time discussed and con- 
structed the unwritten understanding of the extent and 
the subject of the power. Nevertheless, the judges in the 
same cases have occasionally disagreed in several import- 
ant particulars, one overruling another's decision. Our 
task, therefore, must be not only reviewing the different 
decisions of the Supreme Court, but also to distinguish 
the points and emphasize those upon which the under- 
standing shall have been reached. 

Commerce naturally includes traffic or buying or sell- 
ing of goods and commodities. It embraces transporta- 
tion of persons and of tangible things, and the exigencies 
of modern business have brought to play, as an instru- 
ment of commerce, the transmissions of messages by tele- 
graph and telephone.^ Not only does it include navigation 
and all other forms of intercourse, but it includes all the 
instruments by which it is accomplished, viz., steamboats, 
steam railways, stage coaches, bridges, wharves, depots, 
streams, canals, lakes and everything else which may be 
termed essential and convenient for the exercise of com- 
merce. Even an embargo act is judicially constructed 
within the power, although it may seem to us to be the 
utmost limit of construction power under the Constitution. 
The embargo act of the American Congress, when it was 

^ Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 
U. S. I. 



CONGRESS. 43 

enforced upon all commerce with Great Britain and 
France, was contested as unconstitutional. It was vig- 
orously urged that it is a branch of the war-making 
power. It is an instrument of war and not a regulator 
of trade. But we must not lose sight of the reason of 
law. The power which controls commerce must from 
the very nature of things include the power to restrict 
and limit. Chief Justice Marshall, in the case of Gibbon 
V. Ogden, said: "When Congress imposed embargo 
which for a time engaged the attention of every man in 
the United States, the avowed object of the law was 
the protection of commerce and the avoiding of war. 
By its friends and its enemies it was treated as a com- 
mercial not as a war measure. The persevering earnest- 
ness and zeal with which i? was opposed in a part of our 
country which supposed its interests to be vitally affected 
by the act can not be forgotten. A want of acuteness in 
discovering objections to a measure to which they felt 
the most deep-rooted hostility will not be imputed to 
those who are arrayed in opposition to this. Yet they 
never contested that navigation was not a branch of trade, 
and was therefore not comprehended to the power to reg- 
ulate commerce. They did indeed contest the constitu- 
tionality of the act, but on a principle which admits the 
construction for which the appellant contends they denied 
that the particular law in question was made in pursu- 



44 CONGRESS. 

ance of the Constitution, not because the power could not 
act directly on vessels, but because a perpetual embargo 
was the anihilation and not the regulation of commerce. 
They admitted the applicability of the words used in the 
Constitution to vessels ; and that in a case which produced 
a degree and an extent of excitement calculated to draw 
forth every principle on which legitimate resistance could 
be sustained. No example could more strongly illustrate 
the universal understanding of the American people on 
the subject." 

Chief Justice Marshall, with the above entitled case, 
began the first authoritative explanation of the term 
"Commerce" ; since then it has extended with the growth 
of the subject and the invention of modern appliances, 
until there is in our mind a clear conception of the ex- 
tension with the understanding of the meaning of the 
specific power. In this well-known case we will find 
that Mr. Aaron Ogden filed his bill, to begin with, in the 
court of chancery of the State of New York, against Mr. 
Thomas Gibbon, setting forth the several acts of the leg- 
islature thereof, enacted for the purpose of securing to 
Robert R. Livingston and Robert Fulton the exclusive 
navigation of all waters within the jurisdiction of that 
State, with boats moved by fire or steam, for a term of 
years which has not yet expired, and authorizing the 
chancellor to award an injunction restraining any person 



CONGRESS. 45 

whatever from navigating those waters with boats of 
that description. The injunction having been awarded, 
the answer of Gibbons was filed, in which he stated that 
the boats employed by him were duly enrolled and licensed, 
to be employed in the coasting trade, under the act of 
Congress, passed the i8th of February, 1793. However, 
the chancellor perpetuated the injunction, which decree 
was affirmed finally by the highest court of the State. 
The case was thereupon brought to the United States Su- 
preme Court by writ of error. Chief Justice Marshall, 
delivering the opinion of the court, among many import- 
ant things, pointed out: "The subject to be regulated is 
commerce, and our Constitution being, as was aptly said 
at the bar, one of enumeration and not of definition, to 
ascertain the extent of the power, it becomes necessary 
to settle the meaning of the word. The counsel for the 
appellee would limit it to traffic, to buying and selling, or 
the interchange of commodities and do not admit that it 
comprehends navigation. This would restrict a general 
term, applicable to many objects, to one of its signifi- 
cations. Commerce is undoubtedly traffic, but it is some- 
thing more; it is intercourse. It describes the commer- 
cial intercourse between nations and parts of nations in 
all its branches, and is regulated by prescribing rules for 
carrying on that intercourse. If commerce does not in- 
clude navigation, the government of the Union has no 



46 CONGRESS. 

direct power over that subject, and can make no law 
prescribing what shall constitute American vessels, or 
requiring that they shall be navigated by American sea- 
men. Yet this power has been exercised from the com- 
mencement of the government, has been exercised by 
the consent of all, and has been understood by all to be 
commercial regulation. All America understands, and 
has uniformly understood the word 'Commerce' to com- 
prehend navigation. It was so understood and must have 
been so understood when the Constitution was framed. 
The power over commerce, including navigation, was one 
of the primary objects for which the people of America 
adopted their government and must have been contem- 
plated in forming it. The convention must have used the 
word in that sense because all have understood it in that 
sense, and the attempt to restrict it comes too late. The 
subject to which the power is next applied, is to com- 
merce 'among the several States.' The word 'among' 
means intermingled with. A thing which is among others 
is intermingled with them. Commerce among the States 
can not stop at the external boundary line of each State, 
but may be introduced into the interior. The power of 
Congress, then, comprehended navigation, Within the 
limit of every State in the Union so far as that naviga- 
tion may be in any manner connected with 'commerce 
with foreign nations, or among several States, or with the 



CONGRESS. 47 

Indian tribes.' It may, of consequence, pass the juris- 
dictional line of New York, and act upon the very waters 
to which the prohibition now under consideration applies. 
In every such case the act of Congress, or treaty, is 
supreme and the law of the State, though enacted in the 
exercise of powers not controverted, must yield to it.'" 

In connection with regulations affecting the navigation 
of public waters, the State legislature of Alabama en- 
acted a law commanding the owners of steamboats nav- 
igating the water of the State to file a statement with the 
probate judge of Mobile County setting forth the names, 
residence, or interests of the owners. This was held in- 
valid as conflicting with vessels enrolled and licensed to 
trade under the law of Congress.' It was also held in 
the case of Moran v. New Orleans that a statute im- 
posing a license tax not on the vessels as property but on 
the business of owning and operating towboats between 
New Orleans and the Gulf of Mexico, as invalid, as it 
puts a price on the privilege of navigating the Missis- 
sippi.' Closely following the decision of Moran v. New 
Orleans, we will notice the application of its principles 
to the understanding of a step further, when the Su- 
preme Court pointed out that a vesesl which is going 
between the ports of the same State, passes upon the high 

^ Gibbon v. Ogden, 9 Wheat, i. 
' Simot V. Davenport, 22 How. 227. 
'in U. S. 69. 



48 CONGRESS. 

sea, is subject to congressional regulation and is not en- 
gaged in purely domestic commerce." 

Sec. 13. Now there can be no dispute as to the 
paramount authority of the national legislative power 
to regulate interstate and international commerce. When, 
however, the police power of the State comes in full 
view, clearly distinguishable from the regulation of the 
commerce. State power is paramount within a State un- 
til it comes in conflict with an act of Congress. The 
State of Maryland passed an act requiring importers of 
goods to take out a license and pay license fee, but this 
is held to be an encroachment upon the powers of Con- 
gress. In this case the Supreme Court, rendering the de- 
cision, said : "The oppressed and degraded state of com- 
merce previous to the adoption of the Constitution can 
scarcely be forgotten. It was regulated by foreign na- 
tions with a single view to their own interests, and our 
disunited efforts to counteract their restrictions were ren- 
dered impotent by want of combination. It is not, there- 
fore, a matter of surprise, that the grant should be as 
extensive as the mischief, and should comprehend all 
foreign commerce and all commerce among the States. 
To construe the power so as to impair its efficiency would 
tend to defeat an object in the attainment of which the 

^ Lord V. Steamship Co., 102 U. S. 561 ; Pacific C. S. S. Co. v. 
Com'rs, 18 Fed. Rep. 10. 




SOME MEMBERS OF THE HOUSE OF REPRESENTATIVES, FIFTY-NINTH CONGRESS 



Some Members of the House of Representatives of the United 
States, 59th Congress, 1st Session 

1. Charles Frederick Scott, the United States Representative from Kansas, was the 

President of the State Editorial Association and is a graduate of the University 
of Kansas. 

2. Thetus Willrette Sims, the United States Representative from Tennessee, was 

Perry County Superintendent of Public Instruction, and is a graduate of the 
Cumberland University of Lebanon. 

3. Daniel Larned Davis Granger, the United States Representative from Rhode Island, 

was Mayor of the City of Providence, and is a graduate of Brown University. 

4. J. L. B. Burnett, the United States Representative from Alabama, was a member of 

the State Legislature and Senate, and was educated in the Vanderbilt Uni- 
versity. 

5. James McLachlan, the United States Representative from California, was a District 

Attorney of Los Angeles County in the State, and is a graduate of the Hamil- 
ton College. 

6. John W. Gaines, the United States Representative from Tennessee, is a prominent 

lawyer in the State. 

7. Joseph G. Cannon, Speaker of the House of Representatives, from Illinois, is a 

prominent lawyer in the State. 

8. James Harding Southard, the United States Representative from Ohio, was Dis- 

trict Attorney of the Toledo County, and is a graduate of the Cornell Uni- 
versity. 

9. George Washington Cromer, the United States Representative from Indiana, was 

Mayor and Prosecuting Attorney in the State, and is a graduate of the State 
University of Indiana, Bloomington, Indiana. 

10. Charles Henry Grosvenor, the United States Representative from Ohio, was a 

Chairman of the Executive Committee of the State Bar Association, and also 
was a Speaker of the State House of Representatives. 

11. Henry M. Goldfogle, the United States Representative from New York, was a 

Judge of the Municipal Court of New York, and also one of the advisor}' 
committee of the educational alliance. 

12. Bourke W. Cochran, the United States Representative from New York, was a 

member of the committee to revise the Judiciary article of the Constitution of 
New York. 

13. Champ Clark, the United States Representative from Missouri, was Chairman of 

the National Democratic Convention at St. Louis. He was educated in the 
Kentucky University, Bethany College, and the Cincinnatti Law School. He 
also was President of Marshall College of West Virginia. 

14. James G. AlcGuire, ex-United States Representative from California, was Judge 

of the Superior Court of the State. He was also a delegate to the National 
Democratic Convention. 

15. Newton Whiting Gilbert, the United States Representative from Indiana, was a 

State Senator, and is a graduate of the Ohio State University. 

16. Francis W. Cushman, the United States Representative from the State of Wash- 

ington, is a prominent lawyer in Tacoma. 

17. Charles R. Thomas, the United State Representative from North Carolina, was 

Craven County Attorney, and a member of the State Legislature. He is a 
graduate of the Emerson Institute, Washington, D. C, and also the Uni- 
versity of North Carolina. 

18. William Orlando Smith, the United States Representative from Pennsylvania, 

was a Representative in the general Assembly of his State, and was educated 
in the public schools in the State. 



CONGRESS. 51 

American public took and justly took that strong inter- 
est which arose from a full conviction of its necessity." 

What would be the language of a foreign government 
should it be informed that its merchants, after importing 
according to law, were fobidden to sell the merchandise 
imported? What answer would the United States give 
to the complaints and just reproaches to which such ex- 
traordinary circumstances would expose them ? No apol- 
ogy could be received or even offered. Such a state of 
things would break up commerce. It will not meet this 
argument to say that this state of things will never be 
produced; that the good sense of the State is sufficient 
security against it. The Constitution has not confided this 
subject to that good sense. It is placed elsewhere. The 
question is, Where does the power reside, not how far 
will it be probably abused? The power claimed by the 
State is, in its nature, in conflict with that given to Con- 
gress, arid the greater or less extent in which it may be 
exercised does not enter into the inquiry concerning its 
existence.^ 

It is likewise held important when a statute imposed 
a license tax upon persons dealing in goods not produced 
in the State, while imposing no corresponding tax upon 
those dealing in goods which are the products of the 
State.' At the same time, although all the citizens of the 

^ Brown v. Maryland, 12 Wheat. 419, 7 Curtis 262. 
^Welton V. Missouri, 91 U. S. 275. 



52 CONGRESS. 

State of Tennessee were subjected to the same law im- 
posing a tax upon all persons selling goods by sample, 
it was held void to apply the law to a salesman from an 
Ohio house soliciting orders for goods to be sent from 
the State of Ohio/ 

The acts of the State of New York requiring the mas- 
ter of a vessel bringing passengers from other countries 
and landing them within the limits, to pay to the State a 
certain sum per head for every such passenger, or impos- 
ing on the shipowner an alternative payment of a small 
sum of money for each passenger landed, were held 
void/ Neither can the State of California impose a 
stamp duty upon the bill of lading of all goods sent out 
of the State, nor can the State of Indiana forbid the con- 
duction from the State in pipes of natural gas.* Here 
again we emphasize that the power to regulate commerce 
among the States is a unit having been vested exclu- 
sively in Congress, and can not be encroached upon by 
the States. But where, in relation to the subject matter, 
different rules may be suitable for different localities, the 
States may exercise powers which, though they may be 
said to partake of the nature of the power granted to the 

^ Robin V. Shelby Taxing Hist., 120 U. S. 489. Asher v. Texas, 
128 U. S. 129. 

^ Passenger cases, 7 How. 283. Henderson v. Mayer, 92 U. S. 259. 
New York v. Miln., 11 Ret. 103. 

^Almy V. California, 24 How. 169. State v. Indiana, Ohio, Gas 
Co., 120 Ind. 575. Kid. v. Pearson, 128 U. S. i. Phila. S. Co. v. 
Penn., 122 U. S. 326. 



CONGRESS. 53 

general government, are not strictly such, but are simply 
local powers which have full operation until or unless 
circumscribed by the action of Congress in effectuation 
of the general power. 

Chief Justice Fuller, in the case of Leisy v. Hardin, 
delivering the opinion of the Supreme Court upon the 
point, said: 

"And while by virtue of the jurisdiction over persons 
and property within its limits, a State may provide for the 
security of the lives, limbs, health, and comfort of persons 
and the protection of property so situated, yet a subject 
matter which has been confided exclusively to Congress 
by the Constitution is not within the jurisdiction of the 
police power of the State, unless placed there by congres- 
sional action." ' So that when Congress circumscribed 
by an act. Justice White, in a later case, had emphasized 
the State power, in rendering opinion of the court : "The 
Bowman case was decided in 1888, the opinion in Leisy 
V. Hardin was announced in April, 1890, the act under 
consideration was approved August 8, 1890. Consider- 
ing these dates, it is reasonable to infer that the provis- 
ions of the act were intended by Congress to cause the 
legislative authority of the respective States to attach to 
intoxicating liquors coming into the States by an inter- 

^ Leisy v. Hardin, 135 U. S. 100. Henderson v. Mayor of N. Y., 
92 U. S. 259. Railroad Co. v. Husen, 95 U. S. 465. Welling v. 
Michigan, 116 U. S. 446. Robbjn v. Shelby Taxing Dest, 120 U. S. 
489. 



54 CONGRESS. 

State shipment, only after the consummation of the ship- 
ment, but before the sale of the merchandise, that is, that 
the one receiving merchandise of the character named 
should, whilst retaining the full right to use the same, no 
longer enjoy the right to sell free from the restrictions as 
to sale created by State legislation, a right which the de- 
cision in Leisy v. Hardin had just previously declared 
to exist." ^ 

Sec. 14. Among the most important of the powers 
conferred upon Congress is that "to establish a uniform 
rule of naturalization." 

Naturalization is the adoption into the national family 
and investing the rights, privileges and immunities of 
citizenship of persons not born to the citizenship. This 
process involves the fundamental principle underlying 
American understanding of expatriation, the understand- 
ing of the most glorious legal contemplation of the rights 
of man. 

Along the American revolutionary periods so called 
American fathers insisted upon and made all the world 
understand the principle of expatriation, that is, the right 
of man to change his habitation and change his allegi- 
ance until it may be said to be practically universal and 
under it the subjects of all civilized nations have exercised 
and been protected in the rights.' 

^ Rhose V. Iowa, 170 U. S. 412. 

^ Inglis V. Trustees of Sailors Snug Harbor, 3 Pet. 121. 



CONGRESS. 55 

What we have to consider is the particular power of 
Congress as we understand it with regard to estabhshing 
a uniform rule of "naturalization." Under the Consti- 
tution Congress is given exclusive jurisdiction on the sub- 
ject of naturalization. It is plain, when Congress has 
prescribed a rule, its power is exclusive, and any regu- 
lation by any one State would break the rule of uniform- 
ity. Therefore, by conforming the act of Congress the 
complete citizenship can be obtained. It is true that the 
several States in the Union confer to aliens, after de- 
claring their intention to become citizens, the high privi- 
leges of the election franchise. Nevertheless, let all of 
us understand that a State without power of naturaliza- 
tion can not confer aliens that privilege which the Con- 
stitution guarantees, namely : "The citizens of each State 
shall be entitled to all privileges and immunities of citi- 
zens in the United States." 

Aliens may be able to secure the complete citizenship 
according to the acts of Congress which have been enacted 
from time to time. He may obtain it through birth, the 
general provision of naturalization or by virtue of being 
one of the people absolved by treaty. 

Sec. 15. To obtain citizenship through birth in point 
of time and importance is well expressed by Justice Gray 
in the case of Chinaman Wong Kim Ark. The question 
submitted to the Supreme Court for decision in the case 



56 CONGRESS. 

was : whether a child born in the United States of parents 
of Chinese descent who at the time of his birth are sub- 
jects of the Emperor of China, but have a permanent 
domicile and residence in the United States, and are there 
carrying on business, and are not employed in any diplo- 
matic or official capacity under the Emperor of China, 
becomes at the time of his birth a citizen of the United 
States. To which the United States Supreme Court was 
of the opinion that the question must be answered in the 
affirmative. Justice Gray, in rendering this important 
opinion of the court, said : "In this or in other respects, 
it must be interpreted in the light of the common law, the 
principles and history of which were familiarly known to 
the framers of the Constitution," 

The fundamental principle of the common law, with 
regard to the English nationality, was birth within the 
allegiance, also called "ligealty," "obedience," "faith," or 
"power," of the King. The principle embraced all persons 
born within the King's allegiance and subject to his pro- 
tection. Such allegiance and protection were mutual, as 
expressed in the maxim, Protectio trabit suhjectionum, 
et subjectio protectionem, and were restricted to natural 
born subjects and naturalized subjects, or to those who 
had taken an oath of allegiance, but were predicable of 
aliens in amity, so long as they were within the king- 
dom. Children born in England, of such aliens, were 



CONGRESS. 57 

therefore natural born subjects, but the children born 
within the realm of foreign ambassadors, or the children 
of alien enemies, born during and within their hostile 
occupation of the part of the King's dominions, were not 
natural born subjects because not born within the alleg- 
iance, the obedience or the power, or, as would be said 
at this day, within the jurisdiction of the King/ 

Sec. 1 6. Among the provisions of naturalization the 
most discussed one seems to be that of Section 2169, 
which says: "The provisions of this title shall apply to 
aliens of African nativity and to persons of African de- 
scent." The first point of importance in construction of 
this section is considered in 1878, also by the Chinese 
case in re Ah Yup. When the case of this Chinese was 
decided, the Chinese question was flagrant on the Pacific 
slope, and Judge Sawyer seemed to think, predicating 
his conclusion upon the debate in Congress, that the pur- 
pose of the amendment extending the right of naturaliza- 
tion to Africans and persons of African descent was to 
exclude Chinese from the benefit of naturalization. 

To quote his own language: "Many other Senators 
spoke pro and con on the question, this being the point 
of the contest, and these extracts being fair examples of 
the opposing opinions ... It was finally defeated 
(amendment to strike the word 'white' from the naturali- 

'U. S. V. Wong Kim Ark, 169 U. S. 649. 



58 CONGRESS. 

zation laws), and the amendment cited, extending the 
right of naturahzation to the African only adopted. It 
is clear from this proceeding that Congress retained the 
word 'white' in the naturalization laws for the sole pur- 
pose of excluding the Chinese from the right of natural- 
ization . . ."^ 

Later in 1897, when Ricardo Rodriguez, a citizen of 
Mexico, filed an application in due form, by which he 
sought to become a naturalized citizen of the United 
States. The United States District Court, West- 
ern District of Texas, concluded that citizens of 
Mexico were eligible to American citizenship, and 
may be individually naturalized by complying with 
the provisions of American laws. Judge Maxey, 
in rendering the opinion of the court, said a most 
judicious and far-reaching sequence. The learned judge 
has in his opinion clearly drawn the line between the strict 
letter of the law and the meaning and extent of the stat- 
ute. According to his own words : "The opinion of 
Judge Sawyer is by no means decisive of the present 
question, as his language may well convey the meaning 
that the amendment of the naturalization statutes re- 
ferred to by him was intended solely as a prohibition 
against the naturalization of members of the Mongolian 
race. The naturalization of the Chinese is, however, no 
'^ In re Ah Yup, 155 Sawy. ; Fed. Cas. 223. 



^rp^0 








SOME MEMBERS OF THE UNITED STATES SENATE, FIFTY-NINTH CONGRESS 



Some Members of the United States Senate in the 59th 
Congress, 1 st Session 



1. George Clement Perkins, the United States Senator from California, was Gov- 

ernor of the State. He is successor to the late Leland Stanford in the United 
States Senate. 

2. James Alexander Hemenway, the United States Senator from Indiana, was the 

United States Representative from the State. He was prosecuting attorney of 
the Second Judicial Court of Indiana when George L. Reinharde. present 
dean of the Indiana University, was Judge, and succeeded C. W. Fairbanks, 
the Vice-President of the United States. 

3. Joseph Weldon Bailey, the United vStates Senator from Texas, was the nominee 

■ for the Speaker of the House of Representatives of the United States. 

4. William Boyd Allison, the United States Senator from Iowa, was the United 

States Representative from the State, and is a graduate of the Western 
Reserve University. 

5. Winthrop Murray Crane, the United States Senator from Massachusetts, was 

Governor of the State. He was educated at Williston Seminary, Easthampton. 

6. Charles W. Fairbanks, the Vice-President of the Untied States and the President 

of the Senate, was the United States Senator from Indiana, and a graduate 
of the Ohio Wesleyan University. 

7. John Kean, the United States Senator from New Jersey, was Representative from 

the State, and a graduate of Columbia and Yale Universities. 

8. Robert Marion La Follette, the United States Senator from Wisconsin, was thrice 

Governor of the State, and is a graduate of Wisconsin University. 

9. Elmer Jacob Burkett, the United States Senator from Nebraska, was Represen- 

tative from the State, and is a graduate of Tabor College and the University 
of Nebraska. 

10. Reed Smoot, the United States Senator from Utah, is a graduate of Brigham 

Young Academy. 

11. Henry Cabot Lodge, the United States Senator from Massachusetts, was a mem- 

ber of the Alaskan Boundary Commission and the United States Represen- 
tative from his State, and is an alumnus of Harvard, Yale and Clark Uni- 
versities and also of Williams College. 

12. Shelby M. CuUom, the United States Senator from Illinois, was Governor of the 

State and a United States Representative from the State. 

13. Philander Chase Knox, the United States Senator from Pennsylvania, was the 

United States Assistant District Attorney. President of the State Bar Asso- 
ciation, and he was also Attorney General in the McKinley Cabinet and also 
in the Roosevelt Cabinet. He was educated at the Mount Union College 
in Ohio. 

14. Isador Rayner, the LTnited States Senator from Maryland, was Attorney General 

of the State, and was educated at the Maryland and Virginia Universities. 

15. John Warwick Daniel, the United States Senator from Virginia, was a United 

States Representative from his State. He was educated at Lynchburg College 
and the University of Virginia and is an alumnus of Washington and Lee, 
and Michigan Universities. 

16. Francis Griffith Newlands, the United States Senator from Nevada, was vice- 

chairman of the National Silver Committee, and also the United States Rep- 
resentative. He was educated in Yale University, and Columbian (now George 
Washington) University of Washington, D. C. 



CONGRESS. 6 1 

longer an open question, as Section 14, of the Act of 
May 6, 1882, expressly provides, "that hereafter no State 
court or court of the United States shall admit Chinese 
to citizenship; and all laws in conflict with this act are 
hereby repealed. 

"If Chinese were denied the right to become naturalized 
citizens under laws existing when in re Ah Yup was de- 
cided, why did Congress subsequently enact the prohibi- 
tory statute above quoted ? Indeed, it is a debatable ques- 
tion whether the term 'free white person,' as used in the 
original act of 1790, was not employed for the sole pur- 
pose of withholding the right of citizenship from the 
black or African race and the Indians then inhabiting 
this country. But it is not necessary to enter upon a dis- 
cussion of that question; nor is it deemed material to 
inquire to what race ethnological writers would assign 
the present applicant. If the strict scientific classification 
of the anthropologist should be adopted, he would prob- 
ably not be classified as white. It is certain that he is 
not an African, nor a person of African descent. Ac- 
cording to his own statement he is a 'pure-blooded Mexi- 
can,' bearing no relation to the Aztecs or original races 
of Mexico. Being, then a citizen of Mexico, may he be 
naturalized according to the law of Congress? If de- 
barred by the strict letter of the law from receiving letters 
of citizenship, is he embraced within the meaning and 



62 • CONGRESS. 

extent of the law, his application should be granted not- 
withstanding the letter of the statute may be against 
him.'" 

The instances of collective naturalization by treaty 
or by statute are numerous. By the treaty of Sep- 
tember 27, 1830, such tribes as the Choctaws were made 
citizens of the United States. All white person or per- 
sons of European descent who were born in any of the 
colonies or resided or had been adopted there before 
1776 were by declaration invested with the privileges of 
citizenship. Under the second article of Jay's treaty/ 
British subjects who resided at Detroit before and at the 
time of the evacuation of the territory of Michigan, and 
who continued to reside there afterwards without at any 
time prior to the expiration of one year from such 
evacuation declaring their intention of becoming British 
subjects, become ipso facto to all intent and purpose 
American citizens.* 

By article three of the treaty of Paris and 8 Stat. 200, 
202, which was enacted in pursuance to the treaty, "the 
inhabitants of the ceded territory" admitted to citizen- 
ship. In the case of Dred Scott v. Sanford, Mr. Justice 
Catron said: "The settled doctrine in the State courts 
of Louisiana is, the Orleans Territory, after the treaty of 

^ In re Rodriguez, 31 Federal Reporter, 2>2>7- In ^^ Saito, 21 Fed. 
J26. 

= 8 Stat. 116, 117. 
' 143 U. S. 135. 



CONGRESS. 63 

1803 was made, and before Louisiana was admitted into 
the Union, any one being an inhabitant at the time of the 
admission became a citizen of the United States by that 
act; that he was one of the inhabitants contemplated by 
the third article of the treaty, which referred to all the 
inhabitants embraced within the new State on its admis- 
sion. That this is true construction I have no doubt." ^ 
This point was also emphasized in the Debois case. 
Debois, of French birth, applied for a license to practice 
as a counsellor and attorney at law in the Supreme Court 
of Louisiana, and by one of the rules of the court the 
applicant could not be admitted unless he was a citizen 
of the United States. Debois conceded that he had no 
claims to citizenship by birth or by naturalization under 
the act of Congress to establish a uniform rule on that 
subject, but he contended that there was a third mode of 
acquiring citizenship of the United States, namely, the 
admission into the Union of a State of which he was a 
citizen. After an able discussion of the subject. Judge 
Martin concluded that the applicant must be considered a 
citizen of the United States.* There is, however, one 
other mode. That is, if any alien should die without hav- 
ing completed his naturalization his widow and children 
should be considered citizens. This point was made 
clear in the famous Governor-elect Boyd's case and in 

* Dred Scott v. Sanford, 19 How. 395, 525. 
' Debois case, 2 Martin 185. 



64 CONGRESS. 

which the distinguished jurist, Chief Justice Fuller's 
opinion is authority/ 

Before concluding the applications and its judicial 
construction of the acts of Congress, and the congres- 
sional power itself, we are brought to confront the land- 
mark which we must always keep in view with regard 
to the question of naturalization. In the language of 
Chief Justice Marshall : "The jurisdiction of the nation 
within its own territory is necessarily conclusive and 
absolute. It is susceptible of no limitation not imposed 
by itself. Any restriction upon it deriving validity from 
an internal source, would imply a diminution of its 
sovereignty to the same extent in that power which could 
impose such restrictions. All exceptions, therefore, of 
the full and complete power of a nation within its own 
territories, must be traced up to the nation itself. They 
can flow upon no other legitimate source."^ 

Inasmuch as naturalization is the act by which the 
member who legally departs his own sovereignty requires 
membership in the sovereignty to which he migrated, the 
simple act of emigration is no transfer of citizenship. 
This is a well understood proposition. It is also well 
understood that to the act of emigration must be added 
the act of naturalization in accordance with the laws of the 
sovereignty to which the emigrant has emigrated. These 

'Boyd V. Thayer, 143 U. S. I35- 
*The Exchange, 7 Cranch 116, 136. 



CONGRESS. 65 

two acts combined work the transfer of citizenship. In 
discussing the expatriation, emigration and naturahza- 
tion, the recognition of the right of autonomy or regula- 
tion of internal affairs of particular sovereignties must be 
the first principles. The Constitution of the United 
States has no extra-territorial effect, no more than have 
the laws of other countries. 

"If, therefore, the government of the United States." 
in the language of Chief Justice Fuller in rendering opin- 
ion of the court in the case of Chinese exclusion, "through 
its legislation department considers the presence of for- 
eigners of a different race in this country, who will not 
assimilate with us, to be dangerous to its peace and se- 
curity, their exclusion should not be stayed at the time 
there were no actual hostilities with the nation of which 
the foreigners are subjects. The existence of war would 
render the necessity of the proceeding only more obvious 
and pressing. The same necessity, in a less pressing de- 
gree, may arise when war does not exist, and the same 
authority which adjudges the necessity in one case must 
also determine it in the other. In both cases its determi- 
nation is conclusive upon the judiciary." 

Sec. 17. Congress shall also have power to establish 
"uniform laws on the subject of bankruptcy throughout 
the United States." 

Controversies involving the constitutional effects and 



66 CONGRESS. 

operations of State insolvent laws have frequently been 
under consideration in the Federal tribunal, and unless 
it be claimed that constitutional questions must always 
remain open, it must be conceded, we think, that there are 
some things connected with the general subject that 
ought to be regarded as settled and forever closed. State 
authorities have power to pass a bankrupt or insolvent 
law, provided there be no act of Congress in force es- 
tablishing a uniform system of bankruptcy conflicting with 
such laws, and provided the law itself be so framed that 
it does not impair the obligation of contract.^ 

The American understanding of this specific power of 
Congress was clearly made known and the principles for 
such understanding were pointed out time and again. 
Take the case of Ogden v. Saunders and we will see the 
three important rules. First, the Supreme Court of the 
United States held that the power of Congress to estab- 
lish uniform laws on the subject of bankruptcies through- 
out the United States did not exclude the right of the 
States to legislate on the same subject except when the 
power has actually been exercised by Congress, and the 
State laws conflicted with those of Congress. Secondly, 
that a bankrupt or insolvency law of any State which dis- 
charges both the person of the debt and his future acquisi- 
tions of property, was not a law impairing the obligation 
^ Sturges V. Crowninshield, 4 Wheat. 122. 



CONGRESS. 67 

of contract so far as respects debts contracted subsequent 
to the passage of such laws. Thirdly, that a certificate 
of discharge under such a law can not be pledged in bar 
of an action brought by a citizen of another State in the 
court of the United States, or of any other State than 
that where the discharge is obtained.' 

Among many cases directly bearing upon the princi- 
ples, the case of Baldwin v. Hale is conspicuous. Bald- 
win executed at Boston in the State of Massachusetts, 
his promissory note for two thousand dollars, payable 
there to his own order and subsequently indorsed such 
note to Hale. Consequently, Baldwin had a certificate 
of discharge in a proceeding in the court of Massachu- 
setts, which certificate embraced by its terms all con- 
tracts to be performed within the State of Massachusetts ; 
but in this insolvency proceeding Hale did not prove his 
debt or take any part. At the time of the execution of 
the note and commencement of the proceeding, Hale was 
a citizen of Vermont and Baldwin of Massachusetts. 
Baldwin pleaded on the certificate of the State insolvency 
court as the bar to action, but the United States Circuit 
Court in the district of Massachusetts did not sustain 
Baldwin's contentions. Hence, the writ of error for the 
determination of the United States Supreme Court. 
Justice Clifford who rendered the opinion of the court, 
* Ogden V. Saunders, 12 Wheat. 213. 



68 CONGRESS. 

concluded that insolvent laws of one State can not dis- 
charge the contracts of citizens of other States, because 
they have no extra-territorial operation and consequently 
the tribunal sitting under them, unless in cases where a 
citizen of such other State voluntarily becomes a party 
to the proceeding, has no jurisdiction in the case. Legal 
notice can not be given, and consequently there can be 
no obligation to appear, and of course there can be no 
legal default. The judgment of the Circuit Court is 
therefore affirmed with costs accordingly. 

Sec. 1 8. Next in order of the powers conferred upon 
Congress is the one "to coin money, regulate the value 
thereof, and of foreign coin, and fix the standard of 
weights and measures ; and to provide for the punishment 
of counterfeiting the securities and current coin of the 
United States." 

The powers, as incident to the power of borrowing 
money and issuing bills or notes of the government for 
money borrowed, of impressing upon those notes or 
bills the quality of being a legal tender for the payment of 
private debts, was a power universally understood to 
belong to sovereignty in Europe and America at the 
time of the framing and adoption of the Constitution of 
the United States. The governments of Europe, acting 
through the monarch or the legislature, according to the 
distribution of powers under their respective Constitu- 



CONGRESS. 69 

tions, had and have as sovereigns a power of issuing 
paper money and of stamping coin. This power has been 
distinctly recognized in an important modern case, ably 
argued and fully considered, in which the Emperor of 
Austria, as King of Hungary, obtained from the Eng- 
lish Court of Chancery an injunction against the issue 
on England, without his license, of notes purporting to 
be public paper money of Hungary.* The power of issu- 
ing bills of credit, and making them, at the discretion of 
the legislature, a tender in payment of private debts, had 
long been in existence in America among the several col- 
onies and States, and during the Revolutionary War the 
States, upon the recommendation of the Congress of the 
Confederation, had made the bills issued by Congress a 
legal tender.* On this point Justice Strong in the Legal 
Tender Cases rightly observed : "Every contract for the 
payment of money, simply, is necessarily subject to 
the constitutional power of the government over the 
currency, whatever that power may be, and the obliga- 
tion of the parties is therefore assumed with reference 
to that power." 

It is now settled beyond question that Congress has 
the exclusive power to incorporate national banks. It 
is also beyond question settled that the national banks, 
for their own profit as well as for the use of the govem- 

' Austria v. Day, 2 Giff. 628, and 3 D. F. v. T. 217. 
^Juilliard v. Greenman, no U. S. 421. 



70 CONGRESS. 

ment in its money transactions, may issue bills which 
under ordinary circumstances pass from hand to hand 
as money at their nominal value, and which when so 
current the law has always recognized as a good tender 
in payment of money debts, unless specifically objected 
to at the time of tender/ The reason of this understand- 
ing is, in the language of Justice Johnson, "that power 
over the currency of the country, the framers of the 
Constitution evidently intended to give to Congress 
alone." 

Having thus, in the exercise of undisputed constitu- 
tional powers, undertaken to provide a currency for the 
whole country, it can not be questioned that Congress 
may, constitutionally, secure the benefit of it to the people 
by appropriate legislation. To this end, Congress has 
denied the quality of legal tender to foreign coins, and has 
provided by law against the imposition of counterfeit and 
base coin on the community. To the same end. Congress 
may restrain, by suitable enactments, the circulation as 
money of any note not issued under its own authority. 
Without this power, indeed, its attempt to secure a sound 
and uniform currency for the country must be futile.* 

Sec. 19. The power of Congress to fix the "standard" 
of weights and measures is exclusive. There could be 
no "standard" if this were questioned. But when there 

^U. S. Bank v. Bank of Georgia, 10 Wheat. 316. 
="8 Wall. 549, loi U. S. 6. 



CONGRESS. 71 

was no act of Congress, as in the case of Weaver v. 
Fegely, on the question of how many pounds should make 
a ton. State statute is constitutional and valid, as was 
that of Pennsylvania. In this case Judge Lewis said, 
among other things: "But it seems to be the thought, 
by the plaintiff in error, that the mere grant of this power 
to Congress, although not exercised by that body, ex- 
tinguishes it in the States. This is contrary to the rule 
of construction adopted by all approved authorities. 
Alexander Hamilton, who was not likely to relinquish 
Federal authority where he could maintain it with any 
show of reason, states the rule thus : 'This exclusive 
delegation or rather this alienation of the State sovereign- 
ty, exists only in three cases : ist, where the Constitu- 
tion in express terms granted an exclusive authority to 
the Union; 2d, where it granted an authority to the 
Union and at the same time prohibited States from exer- 
cising the like authority; 3d, where it granted an au- 
thority to the Union to which a similar authority in the 
States would be absolutely and totally contradictory and 
repugnant.' It is not pretended that the grant of the 
power to regulate weights and measures is exclusive in 
express terms nor that the States are expressly prohib- 
ited from exercising it. The State sovereignties are 
therefore to be extinguished, as regards this subject, if 
at all, by mere implication. But implication can only 



^2 CONGRESS. 

arise where the State authority is absolutely and totally 
contradictory and repugnant 'to the power delegated to 
Congress.' These terms necessarily imply the pre- 
existence of something to contradict or oppose. But 
there is nothing whatever either in the Constitution or 
in the act of Congress, which the act of assembly in any 
respect contravenes or opposes. It is therefore perfectly 
constitutional." The true rule in this respect was cor- 
rectly stated by Chief Justice Tilghman ; ^ "where the 
authority of the States is taken away by implication, they 
may continue to act until the United States exercise their 
power, because, until such exercise, there can be no in- 
compatibility." The decision of the Supreme Court of 
Pennsylvania, in the case referred to, was affirmed in 
the Supreme Court of the United States, 

In every State of the Union weights and measures have 
been constantly governed either by a standard established 
by a State statute, or by the common law of the State. 
The power of each State to establish its own common law 
on this subject has never been denied. Their right to do 
so, until Congress shall act on the subject, admits of no 
doubt." 

Sec. 20. Now as to counterfeiting, we have heretofore 
reached the understanding that the power of coining 
money and of regulating its value was delegated to Con- 

^ Moore v. Houston, 3 S. & R. 178. 

^ Weaver v. Fegely, 29 Penn. State. 27. 



CONGRESS. 73 

gress by the Constitution for the very purpose of creating 
and preserving the uniformity and purity of such a 
standard of value. We have also concluded that that 
power of Congress is so understood on account of 
the impossibility, which was foreseen, of otherwise pre- 
venting the inequalities and the confusion necessarily in- 
cident to different views of policy, which in different 
communities would be brought to bear on this subject. 
Thus the specific power "to coin money" was given to 
Congress, founded upon public necessity. Then we can 
at once see that that power must carry with it the co- 
related power of "protecting the creature and object" 
of it. 

It is nonsense to suppose for one moment that this high 
and exclusive authority of Congress, and the power to 
secure the objects in question would be disputed. 

One Marigold was charged with having brought into 
the United States from a foreign place certain counter- 
feit coin in violation of Section 20 of the Act of Congress 
of March 3, 1826, entitled "An act more effectually to 
provide for the punishment of certain crimes against the 
United States." The defendant having demurred to the 
indictment, the judge certified a division of opinion as 
follows: "First, whether Congress, under and by virtue 
of the Constitution, had power to enact so much of the 
said twentieth section as relates to bringing into the 



74 CONGRESS. 

United States counterfeit coins; secondly, whether Con- 
gress under and by virtue of the Constitution, had power 
to enact so much of the said twentieth section as relates 
to uttering, publishing, passing and selling of the counter- 
feit coins therein specified." The question was brought 
up to the United States Supreme Court. Justice Daniel, 
delivering the opinion of the court, said: "If the me- 
dium which the government was authorized to create and 
establish could be immediately expelled and one substi- 
tuted that it had neither created, estimated nor author- 
ized — one possessing no intrinsic value — then the power 
conferred by the Constitution would be useless, wholly 
fruitless of every end it was designed to accomplish. 

"We admit that the clause of the Constitution author- 
izing Congress to provide for the punishment of counter- 
feiting the securities and current coin of the United 
States does not embrace within its language the offence 
of uttering or circulating spurious or counterfeited coin 
(the term 'counterfeit,' both by its etymology and com- 
mon acceptance, signifying the fabrication of a false image 
or representation) ; nor do we think it necessary or reg- 
ular to seek the foundation of the offence of circulating 
spurious coin, or for the origin of the right to punish that 
offence, either in the section of the statute before quoted, 
or in the clause of the Constitution. We trace both the 
offence and the authority to punish it to the power given 



CONGRESS. 75 

by the Constitution to coin the money, and to the cor- 
responding and necessary power and obligation to pro- 
tect and to preserve the purity of this constitutional cur- 
rency for the benefit of the nation. 

"We therefore order it to be certified to the Circuit 
Court of the United States for the Northern district of 
New York, in answer to the questions propounded by 
that court: 

"i. That Congress had power and authority, under the 
Constitution, to enact so much of the twentieth section 
of the act of March 3, 1826, entitled 'An act more effect- 
ually to provide for the punishment of certain crimes 
against the United States, and for other purposes,' as re- 
lates to bringing into the United States counterfeit coins ; 

"2. That Congress, under and by virtue of the Constitu- 
tion, had power to enact so much of the said twentieth 
section as relates to the utterance, publishing, passing 
and selling of the counterfeit coin therein specified."^ 

Sec. 21. The direct power given to Congress to enact 
the laws in organizing, managing and controlling the 
post offices and post roads of the United States, has never 
been the subject of question because of the express power 
given by the seventh clause of Section 8, Article I, of 
the Constitution. But we are aware that the incidental 
powers have often been a question of controversy. 

^ U. S. V. Marigold, 9 How. 560. 18 Curtis 261. Fox v. The 
State of Ohio, 5 How. 410. 



76 CONGRESS. 

Every road within a State or Territory, including 
railroads, canals, turnpikes and navigable waters, existing 
or created within a State by the national legislation, be- 
comes a post road/ In ex parte Jackson, it was held 
that the power vested in Congress to establish post offices 
and post roads embraced the regulation of the entire postal 
system of the country, and that under it Congress may 
designate what may be carried in the mail and what ex- 
cluded ; that in excluding various articles from the mails 
the object of Congress is not to interfere with the freedom 
of the press or with any other right of the people, but to 
refuse the facilities for distribution of matter deemed in- 
jurious by Congress to the public morals; and that the 
transportation in any other way of matters excluded from 
the mails would not be forbidden/ 

Sec. 22. In re Rapier case. Chief Justice Fuller clearly 
expressed the criterion of the incidental power. The dis- 
tinguished jurist said: "The States before the Union 
was formed could establish post offices and post roads and 
in doing so could bring into play the police power in the 
protection of their citizens from the use of the means 
provided for purposes supposed to exert a demoralizing 
influence upon the people. When the power to establish 
post offices and post roads was surrendered to Congress 
it was a complete power and the grant carried with it the 

^Clinton Bridge, 10 Wall. 454- 
* Ex parte Jackson, 96 U. S. 727. 




SOME MEMBERS OF THE HOUSE OF REPRESENTATIVES, FIFTY-NINTH CONGRESS 



Some Members of the House of Representatives of the United 
States, 5 9th Congress, 1 st Session 



1. George S. Legare, the United States Representative from South Carolina, was 

educated in the Porter Academy of Charleston and the University of South 
Carolina and is a graduate of the Georgetown University, Washington, D. C. 

2. Julius Kahn, the United States Representative from California, was a member of 

the State Legislature. He was educated in the public schools of San Francisco. 

3. Sydney Emanuel Mudd, the United States Representative from Maryland, was 

president of the State House of Delegates. He was educated in St. John's 
College, the University of Virginia, and Georgetown University, at Washing- 
ton, D. C. 

4. James Carson Needham, the United States Representative from California, was a 

State Senator. He is a graduate of the University of the Pacific, and the 
Michigan University. 

5. Llewellyn Powers, the United States Representative from Maine, was twice Gov- 

ernor of the State and is a graduate of the Ricker Classical Institute, the 
University of Albany and Colby University. 

6. William Randolph Hearst, the United States Representative from New York, was 

educated in the public schools of San Francisco and Harvard University. 

7. William Jennings Bryan, ex-United States Representative, was a candidate for 

the Presidency of the United States. He was educated in the Illinois College. 

8. Joseph R. Knowland, the United States Representative from California, was 

chairman of the San Francisco Police Investigating Committee of the State 
Legislature and was a State Senator. He was educated at the University of 
the Pacific. 

9. Jesse Overstreet, the United States Representative from Indiana, was Secretary 

of the National Republican Congressional Committee. He was educated in the 
public schools of Indiana. 

10. Eban Wever Martin, the United States Representative from South Dakota, was 

President of the Board of Education of the City of Deadwood. He was edu- 
cated in the Michigan University, and is a graduate of the Cornell University. 

11. Morris Sheppard, the United States Representative from Texas, was the first 

president of the Texas Fraternal Congress. He is a graduate of the U^niversity 
of Texas and Yale University. 

12. Richard Wagner Parker, the United States Representative from New Jersey, was 

a member of the House of Assembly of the State, and is a graduate of the 
Princeton University and also of the Columbia University of New York. 

13. Robert W. Miers, ex-United States Representative from Indiana, was the State 

Circuit Judge and is a graduate of the State University of Indiana, Bloom- 
ington, Ind. 

14. G. G. Gilbert, the United States Representative from Kentucky was chairman of 

the Judiciary Committee of the State Senate, and is a graduate of the Uni- 
versity of Louisville. 

15. Charles Arnette Towne, the United States Representative from New York, was 

Chairman of the Silver Republican National Committee. He is a graduate of 
Michigan University. 

16. Edgar Dean Crumpacker, the United States Representative from Indiana, was an 

Appellate Judge in the State. He was educated at the Valparaiso Academy. 

17. Elias S. HoUiday, the United States Representative from Indiana, is a prominent 

lawyer in his State. 

18. Nicholas Longworth, the United States Representative from Ohio, was a member 

of the State House of Representatives, and of the State Senate. He is a 
graduate of Harvard University and also the Cincinnati Law School. 



CONGRESS. 79 

right to exercise all the powers which made that power 
effective. The argument that there is a distinction between 
mala prohibita and mala in se, and that Congress might 
forbid the use of the mails in promotion of such acts as 
are universally regarded as mala in se, including murder, 
arson, burglary, etc., and the offence of circulating ob- 
scene books and papers, but can not do so in respect of 
other matters which it might regard as criminal or im- 
moral, but which it has no power itself to prohibit, in- 
volves a concession which is fatal to the contention of 
petitioners since it would be for Congress to determine 
what are within and what are without the rule; but we 
think there is no room for such a distinction here, and 
that it must be left to Congress in the exercise of a sound 
discretion to determine in what manner it will exercise 
the power it undoubtedly possesses. We can not regard 
the right to operate a lottery as a fundamental right in- 
fringed by the legislation in question; nor are we able 
to see that Congress can be held, in its enactment, to have 
abridged the freedom of the press. The circulation of 
newspapers is not prohibited, but the government de- 
clined to become an agent in the circulation of printed 
matter which it regards as injurious to the people. The 
freedom of communication is not abridged within the 
intent and meaning of the constitutional provision unless 



8o CONGRESS. 

Congress is absolutely destitute of any discretion as 
to what shall or shall not be carried in the mails, and 
compelled arbitrarily to assist in the dissemination of 
matters condemned by its judgment, through the gov- 
ernment agencies which it controls. That power may 
be abused furnishes no ground for a denial of its exist- 
ence, if government is to be maintained at all." ' 

Sec. 23. Congress is further empowered "to pro- 
mote the progress of science and useful arts by securing, 
for limited times, to authors and inventors, the exclusive 
right to their respective writings and discoveries." 
Within the meaning and intent of this express power 
given to Congress are granted copyrights and patents 
to the inventors, authors, designers, or proprietors of 
books, maps, charts, pictures, prints, statues, models, and 
all other rights pertaining thereto. The laws of civilized 
countries recognize the power of municipal law to create 
property out of abstract things. It is this property, not 
choses, but things in possession, that are called copy- 
rights and patents. Under the common law of Great 
Britain the specie of property in literary labor or ideas 
of men were jealously protected, but when such interest 
and rights were published, the common law protection 
ceased and the parliamentary provisions substituted in 
their full extent, although we are aware of the great case 

Vn re Rapier, 143 U. S. no. 



CONGRESS. 8 1 

of Miller v. Taylor, which was decided in favor of the 
common law right before the statute.' Let us reproduce 
a few authorities which settled the common law protec- 
tion in reference to the statutory provisions. Lord Ken- 
yon pointed out in saying that "All arguments in the 
support of the rights of learned men in their works must 
ever be heard with great favor by men of liberal minds 
to whom they are addressed."' It was probably on that 
account that when the great question of literary property 
was discussed, some judges of enlightened understanding 
went the length of maintaining that the right of publi- 
cation rested exclusively with the authors and those 
who claimed under them for all time; but other opinion 
finally prevailed, which established that the right was 
confined to the times limited by the act of Parliament. 
Lord Ellenborough, on this point, also remarked:* "It 
has been said that the statute of 8 Anne has three objects, 
but I can not subdivide the first two ; I think it has only 
two. The counsel for the plaintiff contended that there 
was no right of common law, and perhaps there might 
not be, but of that we have not particularly anything to 
do." Thus the law in England is well settled since the 
statute of 8 Anne. 



* Miller v. Taylor, 4 Barr 2303. 

'27 Term Rep., 627. 

'1 University of Cambridge v. Bryer, 16 East, 319. 



82 CONGRESS. 

The literary property of an author in his works can 
only be asserted under the statute. But, in the language 
of Justice McLean, "If the common law right of an au- 
thor were shown to exist in England, does the same 
right exist and to the same extent, in this country?" 
It is clear there can be no common law of the United 
States. The Federal government is composed of 
sovereign and independent States; each of which 
may have its local usages, customs, and common law. 
There is no principle which pervades the Union, and 
has the authority of law, that is not embodied in the Con- 
stitution of laws of the Union. The common law could 
be made a part of our Federal system, only by legislative 
adoption. 

No one can deny that when the legislature is about to 
vest an exclusive right in an author or an inventor, they 
have the power to prescribe the conditions on which 
such right shall be enjoyed; and that no one can avail 
himself of such right who does not substantially comply 
with the requisitions of the law. This principle is 
familiar as regards patent rights and it is the same 
in relation to the copyright of a book.^ 

Sec. 24. So far as we are able to understand the specific 
power of Congress under consideration, let us take up 
the same in its application to the reserved right of the 

*Wheaton v. Peters, 8 Pet. 591. 11 Curtis 223. 



CONGRESS. 83 

States. In doing so, we will be at once confronted by 
the legal wall erected by the great decision of the United 
States Supreme Court in the case of Patterson v. Ken- 
tucky. In getting over the wall we can see almost every 
thing we want.' The specific offence charged in the 
indictment was that the plaintiff in error had sold, with- 
in the State, to one Davis, an oil known as the Aurora 
oil, the casks containing it having been previously branded 
by an authorized inspector with the words "unsafe for 
illuminating purposes." That particular oil is the same 
for which, in 1867, letters patent were granted to Henry 
C. DeWitt, of whom the plaintiff in error is assignee, by 
assignment duly recorded as required by the laws of the 
United States. Upon the trial of the case it was agreed 
that the Aurora oil could not, by any chemical combina- 
tion described in the patent, be made to conform to the 
standard or test required by the Kentucky statute as a 
prerequisite to the right, within that State, to sell or to 
offer for sale illuminating oil of the kind designated. 
The plaintiff in error, as assignee of the patent, in as- 
serting the right to sell the Aurora oil in any part of the 
United States, claims that no State could, consistently 
with the Federal Constitution and the laws of Congress, 
prevent or abstract the exercise of that right, either by 
express words of prohibition or by regulations, pre- 

* Patterson v. Kentucky, 97 U. S. 501. 



84 CONGRESS. 

scribed tests to which the patented article could not 
be made to conform. 

For this great and important case the Supreme Court 
decided that the construction of the Constitution and laws 
of the United States, made by the plaintiff in error is 
inadmissible. Justice Harlan, the great constitutional 
expounder of the day, rendering the opinion of the court, 
said: "Congress is given power to promote the prog- 
ress of science and the useful arts. To that end it 
may, by all necessary and proper laws, secure to inventors, 
for limited times, the exclusive right to their inventions. 
That power has been exercised in the various statutes 
prescribing the terms and conditions upon which letters 
patent may be obtained. It is true that letters patent, 
pursuing the words of the statute, do, in terms, grant to 
the inventors, his heirs and assigns, the exclusive right 
to make, use and vend to others his invention or discov- 
ery, throughout the United States and the territories 
thereof. But obviously, this right is not granted or se- 
cured, without reference to the general powers which 
the several States of the Union unquestionably possess 
over their purely domestic affairs, whether by internal 
commerce or of police. In the American constitutional 
system, says Mr. Cooley, the power to establish the or- 
dinary regulations of policy has been left with the in- 
dividual States and can not be assumed by the national 



CONGRESS. 85 

government. (Cooley, Const. Lim. 574.) While it is 
very difficult to make the precise boundaries of that 
power or to indicate, by any general rule, the exact lim- 
itations which the States must observe in its exercise, the 
existence of which power in the States has been uni- 
formly recognized in this court." 

By the settled doctrine of this court the police power 
extends, at least, to the protection of the lives, the health, 
and the property of the community against the injurious 
exercise by any citizen of his own rights. State legis- 
lation, strictly and legitimately for police purposes, does 
not, in the sense of the Constitution, necessarily entrench 
upon any authority which has been confided, expressly 
or by implication, to the national government. The 
Kentucky statute under examination manifestly belongs 
to that class of legislation. It expresses in the most sol- 
emn form the deliberate judgment of the State that burn- 
ing fluids which ignite or permanently burn at less than 
a prescribed temperature are unsafe for illuminating pur- 
poses. Whether the policy thus pursued is wise or un- 
wise, it is not the province of the national authority to 
determine. 

The Kentucky statute being, then, an ordinary police 
regulation for the government of those engaged in the 
internal commerce of that State, the only remaining ques- 



86 CONGRESS. 

tion is, whether, under the operation of the Federal Con- 
stitution and the laws of Congress, it is without effect in 
cases where the oil, although condemned by the State as 
unsafe for illuminating purposes, has been made and pre- 
pared for sale in accordance with a discovery of which 
letters patent have been granted. We are of the opinion 
that the right conferred upon the patentee and his assigns 
to use and vend the corporeal thing or article, brought 
into existence by the application of the patents discov- 
ered, must be exercised in subordination to the police 
regulations which the State established by the statute of 
1874. The right of property in the physical substance, 
which is the fruit of discovery, is altogether distinct from 
the right in the discovery itself, just as the property in 
the instruments or plates by which copies of a map are 
multiplied, is distinct from the copyright of the map 
itself. The right to sell the Aurora oil was not derived 
from the letters patent but it existed and could have 
been exercised before they were issued, unless it was 
prohibited by valid local legislation. All which they 
primarily secure is the exclusive right in the discovery. 
That is an incorporeal right, a property in motion, having 
no corporeal tangible substance.^ Its enjoyment may be 
secured and protected by national authority against all 
interference, but the use of the tangible property which 
* Miller v. Taylor, 4 Barr 2396. 



CONGRESS. 87 

comes into existence by the application of the discovery 
is not beyond the control of State legislation, simply be- 
cause the patentee acquires a monopoly in his discovery. 
The distinguished constitutional authority cited to say, 
which citation in its conclusion emphasizes : "A person 
might with as much propriety claim a right to commit 
murder with an instrument, because he held a patent for 
it as a new and useful invention."^ 

Sec. 25. The power "to define and punish piracies and 
felonies committed on the high seas, and offences against 
the law of nations" is conferred upon Congress by the 
Constitution. 

Congress thereupon enacted, in pursuance to the Con- 
stitution, the law which says that "robbery and murder 
committed on the high seas shall be deemed piracy." ' It 
further provided in a separate act that "If any person or 
persons whatsoever, shall upon the high seas, commit 
the crime of piracy, as defined by the laws of nations, and 
such offender or offenders shall be brought into, or found 
in the United States, every such offender or offenders 
shall, upon conviction thereof, etc., be punished with 
death." ^ In application of these letters of statutes the 
series of contest and contention has hitherto been made. 
One of the most discussed is that Congress is bound to 

^Vanini et al v. Paine et al. (Del.) 65. 
*i Stats, at Large 113. 
' Stats, at Large 513. 



bo CONGRESS. 

define, in terms, the offence of piracy, and is not at 
liberty to leave it to be ascertained by judicial interpreta- 
tion. When this question of the specific power was 
brought before the supreme tribunal of the land in the 
case of The Irresistible Justice Story in rendering the 
opinion of the court said : "The power given to Congress 
is not merely to define and punish piracies ; if it were, the 
words *to define' would seem almost superfluous, since 
the power to punish piracies would be held to include the 
power of ascertaining and fixing the definition of the 
crime. But the power is also given 'to define and punish 
felonies on the high seas, and offences against the law of 
nations.' The term 'felonies' has been supposed not to 
have a very exact and determinate meaning in relation 
to offences of the common law committed within the 
body of a county. However this may be, in relation to 
offences on the high seas, it is necessarily somewhat in- 
determinate, sinoe the term is not used in the criminal 
jurisdiction of the admiralty in the technical sense of the 
common law. Offences, too, against the law of nations, 
cannot, with any accuracy, be said to be completely as- 
certained and defined in any public code recognized by the 
common consent of nations." 

But supposing Congress were bound in all cases to 
define the offence, still there is nothing which restricts 
it to a mere logical enumeration in detail of all the facts 



CONGRESS. 89 

constituting the offence. Congress may as well define 
by using a term of a known and determinate meaning, as 
by an express enumeration of all the particulars included 
in that term. In respect to murder, where "malice afore- 
thought" is of the essence of the offence even if the com- 
mon law definition were quoted in express terms, we 
should still be driven to deny that the definition was per- 
fect, since the meaning of "malice aforethought" should 
remain to be gathered from the common law. There 
would then be no end to our difficulties, for each would 
involve some term which might still require some new 
explanation. 

Next the most important feature of the subject under 
our consideration is whether the crime of piracy is de- 
fined by the law of nations with reasonable certainty. 
Every writer on the law of nations alludes to piracy as 
a crime of a settled and determinate nature. All writers 
concur in holding that robbery or forcible depredations 
upon the sea, animo furandi is piracy.* English com- 
mon law also recognizes and punishes piracy as an offence, 
not against its own municipal code, but as an offence 
against the law of nations which is part of the common 
law, as an offence against the universal law of society, 
a pirate being deemed an enemy of the human race.* 

^ Am. and Eng. Enc. of Law, 18, p. 461 ; Hall's Int. Nat. Law, p. 
169; Taylor's Int. Nat. Pub. Law, p. 234. 
* Rex V. Dawson, 5 State Trial; Hawk P. C. c. 37, 3, 2. 



90 CONGRESS. 

Whatever may be the diversity of definitions in other 
respects, the writers on the common law, or the maritime 
law, or the law of nations, all treat the question in the 
same way, agreeing that piracy is an offence against the 
law of nations, and that its true definition, by that law, 
is robbery upon the sea/ 

The opinion of the Supreme Court in the case of The 
Irresistible, was delivered by Justice Story who, in con- 
clusion, said : "The special verdict finds that the prisoner 
is guilty of the plunder and robbery charged in the in- 
dictment, and finds certain additional facts from which 
it is most manifest that he and his associates were, at 
the time of committing the offence, freebooters upon the 
sea, not under the acknowledged authority or deriving 
protection from the flag or commission of any govern- 
ment. If under such circumstances the offence be not 
piracy, it is difficult to conceive of any which would more 
completely fit the definition." 

Sec. 26. Before concluding the specific power given, 
we have so far understood there remains one other ques- 
tion, viz. : What is the "high seas," within the meaning 
of the Constitution, the unwritten understanding of which 
must be equally important if not more so. 

Spaniards, during the i6th century, asserted the right 
to exclude all others from the Pacific Ocean. So did the 
* Inst. 112, 4 Bl, Comm. 73. 



CONGRESS, 91 

Portuguese, under the grant of Pope Alexander VI, the 
exclusive use of the Atlantic Ocean, West and South of 
the designated line. The English, too, in the 17th cen- 
tury, claimed the exclusive right to navigate the seas 
surrounding Great Britain/ "The sea is that which lies 
within the body of a county, or without" ; says Sir 
Matthew Hale, "That arm or branch of the sea which 
lies within the fauces terrea, where a man can reasonably 
discern between shore and shore, is, or at least may be, 
within the body of the county, and therefore within 
the jurisdiction of the sheriff or coroner. That part of 
the sea which lies not within the body of a county is 
called the main sea or ocean." By the "main sea" Hale 
here means the same thing expressed by the term "high 
sea," "mare altum" or "le haut meer."' The United 
States Supreme Court said that it had been frequently 
adjudicated in the English common law courts since the 
restraining statutes of Richard H and Henry IV, "that 
high seas mean that portion of the sea which washes the 
open coast."' 

Justice Field delivered the opinion of the Supreme Court 
on this "high sea" question, stating: "If there were no 
seas other than the ocean, the term 'high seas' would be 
limited to the open, unenclosed waters of the ocean, but 

^ United States v. Rodgers, 150 U. S. 249. Woosley, Int. Law, 
Sec. 55. 
' De Jure Maxis, C. IV. 
* Waring v. Clark, 5 How. 441. 



92 CONGRESS. 

as there are other seas besides the ocean there must be 
high seas other than those of the ocean. A large com- 
merce is conducted on seas other than the ocean and the 
EngHsh seas, and it is equally necessary to distinguish 
between their open waters and their ports and havens 
and to provide for offences on vessels navigating those 
waters and for collisions between them. The term 'high 
seas' does not, in either case, indicate any separate and 
distinct body of water, but only the open waters of the 
sea or ocean, as distinguished from ports and havens 
and waters within narrow headlands on the coast." 

In that sense the term may also be properly used in 
reference to the open waters of the Baltic and the Black 
Seas, both of which are inland seas, finding their way to 
the ocean by a narrow and distinct channel. Indeed 
whenever there are seas, free to the navigation of all 
nations and people on their borders, their open waters 
outside of the portion "surrounded or enclosed between 
narrow headlands or promontories," on the coast, as 
stated by Mr. Justice Story, or "without the body of a 
county," as declared by Sir Matthew Hale, are properly 
characterized as high seas, by whatever name the bodies 
of water of which they are a part may be designated. 
Their names do not determine character.* 



* U. S. V. Rodgers, 150 U. S. 249. Genesee Chief case, 12 How. 
443. 111. Cent. R. R. Co. v. 111., 146 U. S. 387. 



CONGRESS. 93 

Sec. 2,y. Justice Field, in considering the term "high" 
of the high sea, remarked: "It is to be observed also 
that the term 'high' in one of its significations is used to 
denote that which is common, open and public. Thus 
every road, or way, or navigable river which is used 
freely by the public is a 'high' way. So a large body 
of navigable water other than a river which is an extent 
beyond the measurement of one's unaided vision, and is 
open and unconfined, and not under the exclusive con- 
trol of any one nation or people, but is the free high- 
way of adjoining nations or people, must fall under the 
definition of high seas within the meaning of the statute. 
We may as appropriately designate the open, unenclosed 
waters of the lakes as the high seas of the ocean, or simi- 
lar waters of the Mediterranean as the high seas of the 
Mediterranean." ^ 

Sec. 28. According to the Constitution Congress alone 
has the power "to declare war, grant letters of marque 
and reprisals, and make rules concerning capture on land 
and water; to raise and support armies, but no appropri- 
ation of money to that use shall be for a longer term than 
two years; to provide and maintain a navy; to make 
rules for the government and regulation of the land and 
naval forces."' 



^ U. S. V. Rodgers, 150 U. S. 249. 
' Const., Art. 8, cl. 11, 12, 13, 14. 



94 CONGRESS. 

When differences between States reach a point at which 
both parties resort to force, or one of them does an act 
of violence which the other chooses to look upon as a 
breach of peace, the relation of war is set up, in which the 
combatants may use regulated violence against each other 
until one of the two has been brought to accept such 
terms as his enemy is willing to grant/ And whether the 
hostile party be a foreign invader, or States organized 
in rebellion, it is none the less a war, although the declar- 
ation of it be "unilateral." * It is none the less a war on 
that account for war may exist without a declaration on 
either side. A declaration of war by one country only, 
is not a mere challenge to be accepted or refused at pleas- 
ure by the other. The battle of Palo Alto and Resaca 
de la Palma had been fought before the passage of the 
act of Congress of May 13, 1846, which recognized "a 
state of war existing by the act of the Republic of Mexi- 
co." Similar was the act of Congress with regard to the 
Spanish American War. These acts not only provided 
for the future prosecution of the war, but were themselves 
the vindications and ratifications of the acts of the presi- 
dents of respective periods, in accepting the challenge 
without previous formal declarations of war by Congress. 
The Supreme Court of the United States, in the prize 

'Had. Int. Law, 15 Chap. iii. 
' Prize cases, 2 Black, 635. 




SOME MEMBERS OF THE UNITED STATES SENATE, FIFTY-NINTH CONGRESS 



Some Members of the United States Senate in the 59th 
Congress, 1 st Session 



1. George Peabody Whetmore, the United States Senator from .Rhode Island, was 

twice Governor of the State and is a graduate of Yale and Columbia Uni- 
versities. 

2. Julius C. Burrows, the United States Senator from Michigan, was twice elected 

Speaker pro tempore of the House of Representatives. 

3. Fred T. Dubois, the United States Senator from Idaho, was the last Delegate 

from the Territory of Idaho, and is a graduate of Yale University. 

4. William Joel Stone, the United States Senator from Missouri, was Governor of 

the State and is a graduate of the Missouri University. 

5. Anselm Joseph A'IcLaurin, the United States Senator from Mississippi, was Gov- 

ernor of his State. He was also delegate to the Constitutional Convention in 
1890. 

6. Joseph H. Millard, the United States Senator from Nebraska, was Mayor of 

Omaha and is also a prominent banker. 

7. Jacob H. Gallinger, the United States Senator from New Hampshire, was Presi- 

dent of the State Senate and is an alumnus of the Dartmouth College. 

8. Benjamin Ryan Tillman, the United States Senator from South Carolina, was 

twice Governor of the State. 

9. Stephen Russell Mallory, the United States Senator from Florida, was Represen- 

tative from his State and is a graduate of the Georgetown University of 
Washington, D. C. 

10. Francis Emory Warren, the United States Senator from Wyoming, was President 

of the State Senate, and he also was the first Governor of the State. 

11. Albert J. Beveridge, the United States Senator from Indiana, is a graduate of 

the De Pauw University. 

12. Charles Dick, the United States Senator from Ohio, was a United States Repre- 

sentative from his State. He is the successor of Marcus A. Hanna. 

13. Chester I. Long, the United States Senator from Kansas, was the United States 

Representative from his State. 

14. Joseph P)enson Foraker, the United States Senator from Ohio, was Judge of the 

Superior Court of Cincinnati and he was twice Governor of the State. 

15. William Pierce Frye, the United States Senator from Maine, was Attorney Gen- 

eral of the State. He was President pro tempore of the United States Senate, 
and was also a Peace Commissioner for the Spanish-American War. He is 
an alumnus of Bowdoin and Bates Colleges. 



CONGRESS. 97 

cases, in rendering the decision whether or not the law- 
fulness of seizures and condemnations as prizes of ves- 
sels violating the blockade of Southern ports under Pres- 
ident Lincoln's promulgation, said most vital things. 

Justice Grier who delivered the court's opinion said: 
"This greatest of civil wars was not gradually devel- 
oped by popular commotion, tumultuous assemblies, or 
local, unorganized insurrections. However long may 
have been its previous conception, it nevertheless sprung 
forth suddenly from the parent brain, a Minerva in the 
full panoply of war. The President was bound to meet 
it in the shape it presented itself, without waiting for 
Congress to baptize it with a name, and no name given 
to it by him or them could change the fact. Objection 
made to this act of ratification, that it is ex post facto, 
and therefore unconstitutional and void, might possibly 
have some weight on the indictment in a criminal court. 
But the precedents from that source can not be received 
as authoritative in a tribunal administering public and 
international law."^ 

Sec. 29. Constitution declares that Congress shall 
have power "to provide for calling forth the militia, to 
execute the laws of the Union, suppress insurrections, 
and repel invasions;" and also "to provide for organiz- 

'The Prize Case, 2 Black. 635. 



98 CONGRESS. 

ing, arming, and disciplining the militia, and for gov- 
erning such part of them as may be employed in the 
service of the United States." * In pursuance of this au- 
thority, the act of 1795 has provided "that whenever the 
United States shall be invaded, or be in imminent danger 
of invasion from any foreign nation or Indian tribe, it 
shall be lawful for the President of the United States to 
call forth such number of the militia of the State or 
States most convenient to the place of danger, or scene 
of action, as he may judge necessary to repel such inva- 
sion, and to issue his order for that purpose to such officer 
or officers of the militia as he shall think proper." 

In the case of Martin v. Mott, the provisions of the act 
of 1795 has not been denied that it is within the consti- 
tutional authority of Congress, or that Congress may not 
lawfully provide for cases of imminent danger of invasion, 
as well as for cases where an invasion has actually taken 
place. Justice Story in delivering the opinion of the 
court, said that there is no ground for doubt on this 
point, even if it had been relied on, for the power to 
provide for repelling invasions includes the power to 
provide against the attempt and danger of invasion, as 
the necessary and proper means to effectuate the object. 
One of the best means to repel invasion is to provide the 

'U. S. Const., Art. VIII, el. 15, 16. 



CONGRESS. 99 

requisite force for action before the invader himself has 
reached the soil. 

Naturally, free people are jealous of the exercise of 
military power. But American people all understood such 
power conferred on the President is and shall be limited 
power confined to cases of actual invasion, or of immi- 
nent danger of invasion. This limited power has become 
hitherto a question such as this: Is the President the 
sole and exclusive judge whether the exigency has arisen, 
or is it to be considered as an open question ? May every 
officer and every soldier to whom the orders of the Presi- 
dent are addressed, decide to refuse or obey such orders? 

If we look at the language of the act of 1795, every 
conclusion drawn from the nature of the power itself is 
strongly fortified. The words are, "whenever the United 
States shall be invaded, or be in imminent danger of 
invasion, ... it shall be lawful for the President, . . . 
to call forth such number of the militia, ... as he may 
judge necessary to repel such invasion." The power 
itself is confined to the executive of the Union, to him 
who is, by the Constitution, the commander in chief of 
the militia, when called into the actual service of the 
United States, "whose duty it is *to take care that the 
laws be faithfully executed,' " and whose responsibility 
for an honest discharge of his official obligations is se- 



100 CONGRESS. 

cured by the highest sanction. He is necessarily con- 
stituted the judge of the existence of the exigency in the 
first instance, and is bound to act according to his be- 
lief of the facts. If he does act, and decides to call forth 
the militia, his orders for this purpose are in strict con- 
formity with the provisions of the law and it would seem 
to follow, as a necessary consequence, that every act done 
by a subordinate officer, in obedience to such orders, is 
equally justifiable. The law contemplates that, under such 
circumstances, orders shall be given to carry the power 
into effect; and it can not therefore be correct inference 
that any other person has a right to disobey them. The 
law does not provide for any appeal from the judgment 
of the President, or for any right in subordinate officers 
to review his decision, and in effect defeat it. Whenever 
a statute gives a discretionary power to any person, it is to 
be exercised by him upon his own opinion of certain facts. 
In the present case we are all of the opinion that such 
is the true construction of the act of 1795. It is no answer 
that such a power may be abused, for there is no power 
which is not susceptible of abuse. The remedy for this, 
as well as for other official misconduct, if it should occur, 
is to be found in the Constitution itself. In a free gov- 
ernment, the danger must be remote, since in addition to 
the high qualities which the executive must be presumed 



CONGRESS. lOI 

to possess of public virtue, and honest devotion to the 
pubHc interests, the frequency of elections, and the watch- 
fulness of the representatives of the nation, carry with 
them all the checks which can be useful to guard against 
usurpation or wanton tyranny/ 

* Martin v. Mott, 12 Wheat. 19, 7 Curtis 10. 



THE PRESIDENT 



THE PRESIDENT 



ARTICLE III. 

"The executive power shall be vested in a President of the United 
States of America." — Art. II, Sec. i, U. S. Constitution. 

Section 30. The constitutional provision created the 
office of the President of the United States. It vested at 
the same instance the entire executive power in a single 
individual. The head of the executive of the American 
nation "shall hold his office during the term of four years 
and together with the Vice-President, chosen for the 
same term." 

President and Vice-President must be "a natural born 
citizen or a citizen of the United States, who has attained 
the age of thirty-five years"; and a naturalized citizen 
shall be ineligible to that office. The President of the 
United States, the strictest creature of the constitutional 
nomenclature, is not obnubilated behind the mysterious 
obscurity of counsellors. Power is communicated to him 
with liberality, though with ascertained limitations. To 
him the provident or improvident use of it is to be as- 
cribed. For the first, he will have and deserve undivided 
applause. For the last, he will be subject to censure; if 

107 



I08 THE PRESIDENT. 

necessary, to punishment. He is a dignified but accountable 
magistrate of a free and great people. The tenure of his 
office, it is true, is not hereditary; nor is it for life; but 
still it is a tenure of the noblest kind ; by being a man of 
the people, he is invested; by continuing to be a man of 
the people, his investiture will be voluntarily and cheer- 
fully and honorably renewed.^ 

But, as to the investiture of renewal, there is a time- 
honored precedent, philosophised to it the unwritten un- 
derstanding of the Presidential constitution. This prece- 
dent was set forth by George Washington, the first Presi- 
dent. To quote his own language : "The period for a new 
election of a citizen to administer the executive govern- 
ment of the United States being not far distant, and the 
time actually arrived when your thoughts must be em- 
ployed in designating the person who is to be clothed with 
that important trust, it appears to me proper, especially as 
it may conduce to a more distinct expression of the public 
virtue, that I should now appraise you of the resolution 
I have formed to decline being considered among the 
members of those out of whom a choice is to be made. 

"The acceptance of, and continuance hitherto in, the 

office to which your suffrages have twice called me, have 

been a uniform sacrifice of inclination to the opinion of 

duty, and to a deference for what appeared to be your 

^ Wilson's work, 400. 



THE PRESIDENT. IO9 

desire. I constantly hoped that it would have been 
much earlier in my power, consistently with motives 
which I was not at liberty to disregard, to return to that 
retirement from which I had been reluctantly drawn. 
The strength of my inclination to do this, previous to 
the last election, had even led to the preparation of an 
address to declare it to you; but mature reflection on 
the then perplexed and critical posture of our affairs with 
foreign nations and unanimous advice of persons en- 
titled to my confidence impelled me to abandon the idea." ^ 
The American Constitution is silent as to the eligibility 
of women for the office of President. As the letters of 
the constitutional provisions stand, the masculine pro- 
noun "he," representing the President, indicates that the 
person of presidential eligibility may be of the male line, 
otherwise, the feminine President may become the matter 
of possibility. There are some among the American 
women who are advancing from a grade of develop- 
ment where they were only capable of loving and serving 
their own immediate relations, to a grade where they 
really care about their city, State, and country. They 
seem to realize that the world's mothers must not only 
bear and rear good and healthy sons and daughters, but 
must help and make good and healthy, all the sons and 
daughters of mankind. 

^Washington's Farwell Address. 



no THE PRESIDENT. 

In the United States, in case of the removal of the Pres- 
ident from office, or of his death, resignation, or inabihty 
to discharg-e the powers and duties of the office the same 
shall devolve on the Vice-President, and the Congress by 
by-laws provides for the case of both President and Vice- 
President, declaring what officer shall then act as Presi- 
dent until the disability be removed, or a President shall 
be elected. When the President is elected he shall before 
entering upon the duties of his office take an oath, de- 
claring "I do solemnly swear that I will faithfully execute 
the office of President of the United States, and will, to 
the best of my ability, preserve, protect and defend the 
Constitution of the United States." 

Sec. 31. Under the Constitution, the President is the 
commander-in-chief of the army and navy of the United 
States, and the militia of the several States when they are 
called into actual service of the United States. Standing 
alone, the constitutional provision invested in the Presi- 
dent the final and supreme power to declare martial law, 
confiscate and condemn or forfeit what belongs to be- 
ligerents and enemies. In the same constitutional pro- 
vision the President is empowered to require the opinion, 
in writing, of the principal officer or head in each of the 
executive departments, upon any subject relating to the 
duties of their respective offices. In the United States 
the President may, according to usages and customs, 



THE PRESIDENT. Ill 

call the principal officer or commonly called Secretary 
of each department, together to carry on the important 
affairs of the executive, which gathering is also called a 
Cabinet Meeting. However, the understanding of the 
American cabinet, the powers and duties of its members, 
is apparently different from that under King or Em- 
peror. The cabinet members are the mere executive 
agents and any official act done by them or one of them 
in the legal contemplation is done by the President, and 
the responsibility is, not upon the cabinet members, but 
upon the President himself. 

Sec. 32. The responsibility of the executive is for the 
people to institute against. The Constitution and laws 
made in pursuance to the Constitution will enact such re- 
sponsibility. The Constitution declares that the Presi- 
dent, Vice-President and all civil officers of the United 
States are liable to the processes of removal and punish- 
ment; and invested in the House of Representatives the 
sole power of impeachment, and in the Senate the sole 
power to try its presentments. When the President is 
tried the Chief Justice of the Supreme Court shall pre- 
side. President Johnson was acquitted by one less vote 
than the concurrence of two-thirds of the members. 
Judgment in case of impeachment shall not extend 
further than to the removal from office and disqualifi- 
cation to hold and enjoy any office of honor, trust or 



112 THE PRESIDENT. 

profit under the United States. But the party convicted 
shall nevertheless be liable, and subject to indictment, 
trial, judgment and punishment according to law. As 
to the words "civil officers" in the constitutional pro- 
vision, they may be construed as all officers who hold 
their office under the national government, irrespective 
of the department, but it rests with the Senate, as a court 
of last resort, to decide who are included within that 
designation. The President's power to grant reprieves 
and pardons does not extend to impeachment. 

Sec. 33. The Constitution empowers the President 
to grant reprieves and pardons for offences against the 
United States except in cases of impeachment. Under 
this power the President has granted reprieves and par- 
dons since the beginning of the American government. 
No statute has ever been passed regulating it in cases 
of conviction by the civil authority; the President has 
exercised the specific power in such cases. 

The word "pardon" does not mean either in the com- 
mon parlance or in the legal contemplation an absolute 
pardon, exempting a criminal from the punishment which 
the law inflicts for a crime he has committed. It means, 
in the language of Justice Wayne, "forgiveness, release, 
remission. Forgiveness for an offence, whether it be 
one for which the person committing it is liable in the 
law or otherwise. Release from pecuniary obligation, 



THE PRESIDENT, II3 

as where it is said, I pardon you your debt, or it is the 
remission of a penalty to which one may have subjected 
himself by the non-performance of an undertaking or 
contract, or when a statutory penalty as money has been 
incurred, and it is remitted by a public functionary hav- 
ing power to remit it. In the law it has different mean- 
ings, which were as well understood when the Constitution 
was made as any other legal word in the Constitution 
now is."^ 

It was with the fullest knowledge of the law upon 
the subject of pardons, and the philosophy of govern- 
ment in its bearing upon the Constitution, when the 
Supreme Court instructed Chief Justice Marshall to say 
"that the power has been exercised from time im- 
memorial by the executive of that nation whose language 
is our language, and to whose judicial instructions ours 
bear a close resemblance, we adopt their principles re- 
specting the operation and effect of a pardon, and look 
into their books for the rules prescribing the manner in 
which it is to be used by the person who would avail him- 
self of it/ The understanding of this construction has 
ever since been accepted and the important cases which 
followed it embodied the same philosophy of it.' 

Pardon is said by Lord Coke to be a work of mercy, 

^ Ex parte Wells, 18 How. 307. 

'U. S. V. Wilson, 7 Pet. 162. 

* Cathcart v. Robinson, 5 Pet. 264. 



114 THE PRESIDENT. 

whereby the King either before, attainds sentence or con- 
viction, or after, forgiving any crime, offence, punish- 
ment, execution, right, title, debt, or duty, temporal or 
ecclesiastical ; the King's coronation oath is, "that he will 
cause justice to be executed in mercy." It is frequently 
conditional, as he may extend his mercy upon what terms 
he pleases, and annex to his bounty a condition precedent 
or subsequent, on the performance of which validity of 
the pardon will depend. And if the felon does not 
perform the condition of the pardon, it will be altogether 
void; and he many be brought to the bar and made to 
suffer the punishment to which he was originally sen- 
tenced. But in the meantime we must make it understood 
that the King cannot, by any previous license, make an 
offence dispunishable which is malum in se, that is, unlaw- 
ful itself as being against the law of nature, common 
good, common law, reason and public good. 

"This power to pardon," says the Supreme Court, "has 
also been restrained by particular statutes. By the Act 
of Settlement, 12 and 13 Will, iii c. 2, Eng., no pardon 
under the great seal is pleadable to an impeachment by 
the Commons in Parliament, but after the articles of im- 
peachment have been heard and determined, he may par- 
don. The provision in our Constitution, except in cases 
of impeachment out of the power of the President to 




PRESIDENTS OF THE UNITED STATES 



1. John Tyler, lOth Pres. 

2. John Adams, id Pres. 

3. Franklin Pikkce, 14th Pres. 

4. Zacharv Taylor, 12th Pres. 



12. Andrrw Jackson, 7th Pres. 



Thomas Jekferson, Srd Pres. 
James Madison, -Ith Pres. 
George Washington, Ibt Pres. 
James K. Polk, llth Pres. 



9. John Quincy Adams, 6th Pres. 

10. James Monroe, 5th Pres. 

11. William Henry Harrison, 

llth Pres. 



13. Martin Van Buken, 8th Pres. 



THE PRESIDENT. II7 

pardon, was evidently taken from that statute, and is an 
improvement upon the same." * 

As to the reprieves, the same court makes us to un- 
derstand that that is not only to be used to delay a 
judicial sentence when the President shall think the merits 
of the case, or some cause connected with the offender 
may require it, but it extends also to cases ex necessitate 
legis, as where a female after conviction is found to be 
enceinte, or where a convict becomes insane, or is al- 
leged to be so. Though the reprieve in either case pro- 
duces delay in the execution of a sentence, the means to 
Le used to determine either of the two just mentioned, 
are clearly within the President's power to direct; and 
reprieves in such cases are different in their legal charac- 
ter, and different as to the causes which may induce the 
exercise of the power to reprieve. 

In conclusion of the specific power of the President to 
grant pardon we herein cite the philosophy of the un- 
written understanding of it, in quoting the language of 
Justice Field: "It extends to every office known to law, 
and may be exercised at any time after its commission, 
either before legal proceedings are taken, or during their 
pendency, or after conviction and judgment. This power 
of the President is not subject to the legislatures' control. 
Congress can neither limit the effect of his pardon, nor,- 
^ Ex parte Wells, 11 Howard 307. 



Il8 THE PRESIDENT. 

exclude from its exercise any class of offenders. The 
benign prerogative of mercy reposed in him can not be 
fetted by any legislative restriction. Such being the case, 
the inquiry arises as to the effect and operation of a par- 
don, and on this point all the authorities concur. A par- 
don reaches both the punishment prescribed for the of- 
fence and the guilt of the offender ; and when the pardon 
is full, it releases the punishment and blots out of ex- 
istence the guilt, so that in the eyes of the law the offender 
is as innocent as if he had never committed the offence. 
If granted before conviction, it prevents any of the pen- 
alties and disabilities which follow conviction ; if granted 
after conviction, it removes the penalties and disabilities, 
and restores him to all his civil rights; it makes him as 
it were, a new man, and gives him new credit and capac- 
ity. There is only this limitation to its operation, it does 
not restore offices forfeited, or property or interest vested 
in others in consequence of the conviction and judg- 
ment." ^ 

Sec. 34. The President of the United States is also em- 
powered by the Constitution, by and with the advice and 
consent of the Senate, to make treaties, provided two- 
thirds of the Senators present concur. 

As was said by Chief Justice Marshall {The Peggy 
I Cranch. 103, no) : "Where a treaty is the law of the 

^ Ex parte Garland, 4 Wall. ZZ2>- 4 Bl. Com. 402. 6 Bacon's 
.Abrig., tit. Pardon. Hawkins, Book 2, c. 2)7^ 34 and 54. 



THE PRESIDENT. I IQ 

land, and as such affects the rights of parties litigating 
in court, that treaty as much binds those rights, and is 
as much to be regarded by the courts as an act of Con- 
gress." And in Whitney v. Robertson (124 U. S. 190) : 
"By the Constitution a treaty is placed on the same foot- 
ing, and made of like obligation, with an act of legisla- 
tion. Both are declared by that instrument to be the su- 
preme law of the land, and no superior efficacy is given 
to either over the other. When the two relate to the 
same subject, the courts will always endeavor to construe 
them so as to give effect to both, if that can be done with- 
out violating the language of either; but if the two are 
inconsistent, the one last in date will control the other, 
provided always that the stipulation of the treaty on the 
subject is self-executing." To the same effect are the 
Cherokee Tobacco ( 1 1 Wall. 616) and the Head Money 
cases (112 U. S. 580). 

One of the ordinary incidents of a treaty is the cession 
of territory. It is not too much to say it is the rule, 
rather than the exception, that a treaty of peace, follow- 
ing upon a war, provides for a cession of territory to the 
victorious party. It was said by Chief Justice Marshall 
in American Ins. Co. v. Canter (i Pet. 511, 542) : "The 
Constitution confers absolutely upon the government of 
the Union the powers of making war and of making 
treaties ; consequently that government possesses the pow- 



120 THE PRESIDENT. 

er of acquiring territory, either by conquest or by treaty." 
The territory thus acquired is acquired as absolutely as 
if the annexation were made, as in the case of Texas and 
Hawaii, by an act of Congress. 

It follows from this that by the ratification of the treaty 
of Paris the island became the territory of the United 
States — although not an organized territory in the tech- 
nical sense of the word. 

It is true Mr. Chief Justice Taney held in Scott v. 
Sanford (19 How. 393), that the territorial clause of 
the Constitution was confined, and intended to be con- 
fined, to the territory which at that time belonged to or 
was claimed by the United States, and was within their 
boundaries, as settled by the treaty with Great Britain; 
and was not intended to apply to territory subsequently 
acquired. He seemed to differ in this construction from 
Chief Justice Marshall in the American, etc., Ins. Co. v. 
Canter (i Pet. 511, 542) who, in speaking of Florida 
before it became a State, remarked that it continued to 
be a territory of the United States, governed by the ter- 
ritorial clause of the Constitution. 

But whatever be the source of this power, its unin- 
terrupted exercise by Congress for a century, and the 
repeated declarations of this court, have settled the law 
that the right to acquire territory involves the right to 
govern and dispose of it. That was stated by Chief 



THE PRESIDENT. 121 

Justice Taney in the Dred Scott case. In the more 
recent case of the National Bank v. County of Yank- 
ton, (loi U. S. 129), it was said by Mr. Chief Jus- 
tice Waite that Congress "has full and complete leg- 
islative authority over the people of the territories and all 
of the departments of the territorial governments. It 
may do for the territories what the people, under the 
Constitution of the United States, may do for the States." 
Indeed, it is scarcely too much to say that there has not 
been a session of Congress since the Territory of Louis- 
iana was purchased that that body has not enacted legis- 
lation based upon the assumed authority to govern and 
control the territories. It is an authority which arises, not 
necessarily from the territorial clause of the Constitution, 
but from the necessities of the case, and from the inabil- 
ity of the States to act upon the subject. Under this 
power Congress may deal with territory acquired by 
treaty; may administer its government as it does that of 
the District of Columbia; it may organize a local terri- 
torial government; it may admit it as a State upon an 
equality with other States ; it may sell its public lands to 
individual citizens or may donate them as homesteads to 
actual settlers. In short, when once acquired by treaty, it 
belongs to the United States, and is subject to the dis- 
position of Congress.' 

^ The Insular Tariff Cases. 



122 THE PRESIDENT. 

A treaty is, in its nature, a contract between two na- 
tions, not a legislative act. It does not generally effect, 
of itself, the object to be accomplished, especially so far 
as its operation is infra-territorial; but is carried into 
execution by the sovereign power of the respective part- 
ies to the instrument. In the United States a different 
principle is established. It is, consequently, to be regarded 
in courts of justice as equivalent to an act of the legisla- 
ture whenever it operates without the aid of any legisla- 
tive provision. But when the terms of the stipulation im- 
port a contract, that is when either of the parties engage 
to perform a particular act, the treaty addresses itself to 
the political, not the judicial department; and the legis- 
lature must execute the contract before it can become a 
rule for the court.^ 

Viewing the treaty, which operates with regard to the 
individual rights. Justice Davis, in the case of Haver v. 
Yaker, said that in this country, a treaty is something 
more than a contract, for the Federal Constitution de- 
clares it to be the law of the land. If so before it becomes 
a law, the Senate, in whom rests the authority to ratify it, 
must agree to it. But the Senate is not required to 
adopt or reject it as a whole, but may modify or amend 
it, as was done with the treaty under consideration. As 
the individual citizen on whose rights of property it op- 
^ Foster v. Neilson, 2 Pet. 253. 



THE PRESIDENT. 1 23 

erates, has no means of knowing anything of it while 
before the Senate, it would be wrong in principle, to 
hold him bound by it, as the law of the land, until it was 
ratified and proclaimed. And to construe the law so as 
to make the ratification of the treaty relate back to its 
signing, would be manifestly unjust, and can not be 
sanctioned.^ 

Sec. 35. Question as to a conflict between an act of 
Congress, and a treaty in force when the act was passed ; 
the act of Congress must prevail in a judicial forum.'' 
In support of the unwritten understanding of it, 
Justice Miller, in Head Money cases, had then to say 
that a treaty is made by the President and the Senate. 
Statutes are made by the President, the Senate and the 
House of Representatives. The addition of the latter 
body to the other two in making a law certainly does not 
render it less entitled to respect in the matter of its re- 
peal or modification than a treaty made by the other two. 
If there is any difference in this regard, it would seem to 
be in favor of an act in which all three of the bodies par- 
ticipate. And such is, in fact, the case in a declaration 
of war, which must be made by Congress, and which 
when made, usually suspends or destroys existing treat- 
ies between the nations thus at war. In short, we are 
of the opinion that, so far as a treaty made by the United 

^ Haver v. Yaker, 9 Wallace 32. 

"* Taylor v. Morton, 2 Curtis, 454. Ah Lung, 18 Fed. Rep. 28. 



124 THE PRESIDENT. 

States with any foreign nation can become the subject of 
judicial cognizance in the courts of this country, it is 
subject to such acts as Congress may pass for its en- 
forcement, modification or repeal/ 

Sec. 36. Always keeping in view of the judicial un- 
derstanding in the case of conflict between the treaty and 
the act of Congress, let us inquire into what is the under- 
standing with regard to a conflict between the treaty pro- 
vision and the State statutory provision. "As com- 
mercial intercourse increases between different countries," 
says Justice Field, "the residence of citizens of one coun- 
try within the territory of the other naturally follows, 
and the removal of their disability from allegiance to 
hold, transfer, and inherit property in such cases tends to 
promote amicable relations. Such removal has been with- 
in the present century the frequent subject of treaty 
arrangement. The treaty power, as expressed in the 
Constitution, is in terms unlimited, except by those re- 
straints which are found in that instrument against the 
action of the government or of its departments, and those 
arising from the nature of the government itself and of 
that of the States. But with these exceptions, it is not 
perceptible that there is any limit to the questions which 
can be adjusted touching any matter which is properly 
the subject of negotiation with a foreign country."' 

^Head Money Cases, 112 U. S. 580. 
^ Geofroy v. Riggs, 133 U. S. 258. 




PRESIDENTS OF THE UNITED STATES 



Rutherford B. Hayes, 19th Pres. 
CHJ1.S7JSR A. Arthur, 2l8t Pres. 
Benjamin Harrison, 23rd Pres. 
Abraham Lincoi^n, 16tli Pres. 
Thkodore Roosevelt, 26th Pres. 
James A. Garfield, 20th Pres. 



Grover Cleveland, 22d and 2-lth Pres. 
William McKinley, 25th Pres. 
Ulvsses S. Grant. 18th Pres. 
Andrew .Johnson, 17th I'res. 
James Buchanan, lotn Pres. 
Millard Fillmore, Kith Pres. 



THE PRESIDENT. 12/ 

When arriving at this understanding of the power of the 
Federal Government we are naturally confronted with 
the question as to whether the Federal Government is to 
control the internal policy of the States, which was often 
the case since the commencement of this constitutional 
government/ 

The Supreme Court of the State of California in- 
structed Judge Heydenfeldt to say when the policy and 
State statutory provisions were in jeopardy under the 
treaty, being made by the Federal power. "Now, as by 
the compact the States are absolutely prohibited from 
making treaties, if the general government has not the 
power, then we must admit a lameness and incomplete- 
ness in our whole system, which renders us inferior to 
any other enlightened nation, in the power and ability to 
advance the prosperity of the people we govern. Mr. 
Calhoun, in his discourse on the Constitution and govern- 
ment of the United States, has given to this power a full 
consideration, and I cannot doubt that the view which I 
have taken is sustained by his reasoning according to his 
opinion, the following may be classed as the limitations 
on the treaty making power : First, it is limited strictly 
to questions inter alias, 'all such clearly appertain to it.' 
Second, 'by all the provisions of the Constitution which 
prohibit certain acts to be done by the government or any 

* Opel V. Shoup, 100 Iowa 407. Wunderle v. Wunderle, 144 III. 
40. Hauenstein v. Lynham, 100 U. S. 483. 



128 THE PRESIDENT. 

of its departments.' Third, 'by such provisions of the 
Constitution as direct certain acts to be done in a par- 
ticular way, and which prohibit the contrary.' Fourth, 
*it can enter into no stipulation calculated to change the 
character of the government, or to do that which can only 
be done by the Constitution making power; or which is 
inconsistent with the nature and structure of the gov- 
ernment or the objects for which it was found.' Even if 
this power was to abrogate to some extent the legisla- 
tion of the States, we have authority for admitting it, if 
it does not exceed the limitations which we have cited 
from the work of Mr. Calhoun, and laid down as the rule 
to which we yield our assent. I see no danger which can 
result from yielding to the Federal Government the full 
extent of the power which it may claim from the plain 
language, intent and meaning of the grant under consid- 
eration, upon some subjects, and the policy of foreign 
governments would be readily changed upon the princi- 
ples of mutual concession. This can only be affected by 
the action of that branch of the States sovereignty known 
as the general government, and when effected, the State 
policy must give way to that adopted by the governmental 
agent for her foreign relations."* 

Sec. 37. The President is directed to send from time to 
time such message to Congress or in the language of the 

' People, ex Rel. The Attorney- General v. Gerke, 5 Cal. 381. 



THE PRESIDENT. 1 29 

Constitution, "information of the State of the Union." 
He may on extra occasions convene both Houses or either 
of them, and in case of disagreement, he may adjourn 
them to such a time as he thinks proper. Such inter- 
ferences on the part of the President are justified accord- 
ing to the circumstances of the case. He also has power 
to veto such bills passed by the two Houses before it shall 
become a law. When he vetoes a bill he must return it 
with his objections to the House in which it originated. 
If the House reconsiders the bill and passes it by two- 
thirds of that House it shall be sent, together with the 
objections, to the other House; if again approved by 
two-thirds of that House it shall become a law over the 
President's veto. However, any bill shall not be re- 
turned by the President within ten days — Sunday ex- 
cepted — after it shall have been presented to him, it will 
become a law in like manner as if he had signed it, unless 
the Congress, by their adjournments, prevents its return. 
All orders, resolutions, and votes to which the assent of 
both Houses may be necessary, except on a question of 
adjournment, must take the course of bills.' 

Sec. 38. The President has, under the Constitution, 
power, by and with the advice and consent of the Sen- 
ate to appoint ambassadors, other public ministers and 
consuls, judges of the Supreme Court, and all other 
'Art. I, Sec. 7, Cls. 2, 3, Const. 



130 THE PRESIDENT. 

officers of the United States whose appointments are not 
in the Constitution otherwise provided for, and which 
shall be established by law ; but Congress may by law vest 
the appointment of such inferior officers in the President 
alone in the courts of law, or in the heads of the de- 
partment. 

Of all the particular powers that are implied in this 
provision of the Constitution, the most conspicuous one 
is that prerogative of the President with regard to the 
removal of the officer who was appointed in concurrence 
with the Senate. Alexander Hamilton, in defence for 
the adoption of the Constitution had advanced the pre- 
liminary understanding of this specific prerogative. He 
says that "it has been mentioned as one of the advantages 
to be expected from the co-operation of the Senate, the 
business of appointments, that it would contribute to 
the stability of the administration. The consent of that 
body would be necessary to displace as well as to appoint." 
However, after the adoption, Mr. Madison championed 
the opinion of a decided majority in the first session of 
the first House of Representatives in 1783 which had 
not only changed the preliminary understanding of the 
prerogative but also enlarged it. In Mr. Madison's own 
language, "Executive should have power of independ- 
ent removal, whether already derived from the Consti- 
tution or to be conferred by supplementary legislation." 



THE PRESIDENT. I3I 

The debate arose upon the clause in a pending bill pro- 
viding that the officer therein named should "be remov- 
able by the President." The bill thus passed was sent to 
the Senate, where it was completed. Madison's declar- 
ation then and since then, attaches a great bearing upon 
the officer of the Executive head, when he said : "I 
feel the importance of the question, and know that our 
decision will involve the decision of all similar cases and 
that the decision that is at this time made will become 
the prominent exposition of the Constitution." 

The specific understanding of the President's pre- 
rogative to remove Federal officers without the partici- 
pation or interference of the Senate, was afterwards au- 
thenticated by the Supreme Court of the United States: 
"No one denied the power of the President and Senate 
jointly to remove, where the tenure of the office was not 
fixed by the Constitution; which was a full recognition 
of the principle that the power of removal was incident 
to the power of appointment. But it was very early 
adopted, as the practical construction of the Constitu- 
tion that this power was vested in the President alone. 
And such would appear to have been the legislative con- 
struction of the Constitution."^ Such is the unwritten 
understanding of the Constitution, which was, however 
occasionally disturbed by the circumstances of the age. 

^ Ex Parte Hennen, 13 Pet. 259. Blake v. United States, 103 U. 
S. 229. 



132 THE PRESIDENT. 

Once in 1867, under President Johnson's administration, 
and again under that of President Cleveland. The bitter 
contention between the Senate and President may be 
better illustrated in quoting the language of Mr. Cleve- 
land: "Within thirty days after the Senate met in De- 
cember, 1885, the nominations of the persons who had 
been designated to succeed officials suspended during the 
vacation, were sent to that body for confirmation pur- 
suant to existing statutes. Very often in the session 
frequent requests in writing began to issue from the 
Senate to which these nominations were referred, di- 
rected to the heads of the several departments having 
supervision of the officers to which the nominations 
related, asking the reason for the suspension of the offi- 
cers whose places it was proposed to fill by means of the 
nominations submitted, and for all papers on file in their 
departments which showed the reason for such suspen- 
sions. 

"In considering the request made for the transmission 
of the reasons for suspensions and the papers relating 
thereto, I could not avoid the conviction that a compli- 
ance with such requests would be to that extent a failure 
to protect and defend the Constitution, as well as a wrong 
to the great office I held in trust for the people, and which 
I was bound to transmit unimpaired to my successors, 
nor could I be unmindful of a tendency in some quarters 



THE PRESIDENT. 133 

to encroach upon executive functions, or of the eager- 
ness with which executive concession would be seized 
upon as establishing precedence . . . 

"Thus was an unpleasant controversy happily followed 
by an expurgation of the last pretence of statutory sanc- 
tion to encroachment upon constitutional executive pre- 
rogatives, and thus was a time honored interpretation 
of the Constitution restored to us. The President freed 
from the Senators claim of tutelage, became again the 
independent agent of the people, representing a co-ordi- 
nate branch of their government, charged with responsibil- 
ities which under his oath, he ought not to avoid or divide 
with others, and invested with powers, not to be surren- 
dered, but to be used under guidance of patriotic inten- 
tion and an unclouded conscience."^ 

The language of one of the greatest men serves 
most vital and everlasting consequence for the main- 
tenance of the American constitutional mechanism, 
"Check and Balance" systems of the government. In 
the meantime all the Americans understood that pre- 
rogative of the President would not include in it power 
of anticipating a vacancy and appointing an officer for 
such vacancy; and that in matters arising out of the 
ministerial duties which is one of the vast and enumer- 
ated powers the President is subjected to, if necessary, 
^ Presidential Problems, P. 45-76. 



134 THE PRESIDENT. 

such judicial interferences.' And the last and most im- 
portant of them all is the understanding of the Presi- 
dent's cognizance of the prerogative of the Senate ; name- 
ly, the constitutional power of the Senate to advise and 
consent, if necessary to restrain the President's appoint- 
ment of Federal affairs. 

This co-operation of the Senate and President, how^ 
ever, has often been subjected to and suggested criticism. 
They say that it may serve to give the President an undue 
influence over the Senate or that it may have an opposite 
tendency. In the United States the political circum- 
stances manifests itself towards totally unlooked for 
destiny. Nationally as well as individually the American 
characteristics ever have been and ever will be very pe- 
culiar, in that they resist encroachment of any kind. Am- 
bition of one separate and distinct government counteracts 
ambition of another. It is said that justice is the end of 
government, and that it is the end of civil society. This 
is true, but it is also true that the Americans like any 
other human race, are not angels. If they were, no gov- 
ernment would be necessary. In the United States we 
notice that policy of supplying, by opposite and vital 
interests, the defects of better motives, which is trace- 
able through the whole system, private or public. And 
then the electors for choosing the President, as well as 

^McCrary and Law of Elections, Sec. 237-257. Page v. Hardin, 
8 B. Mons. (Ky.) 648. Marbery v. Madison, i Cranch. 137. 




MEMBERS OF THE CABINET AND HIGH OFFICIALS, ROOSEVELT ADMINISTRATION 



Members of the Cabinet and the High Officials with the 
Roosevelt Administration 



I. Frank P. Sargent, of Vermont, U. S. Commissioner General of Immigration, was 
chief of Brotherhood of Locomotive Firemen, a member of the Industrial 
Commission, and was educated in the public schools of his State. 

2. Ethan Allen Hitchcock, of Missouri, Secretary of the Interior, was the United 

States Ambassador Extraordinary and Minister Plenipotentiary to Russia. He 
was educated at the Military Academy in New Haven. 

3. Henry Martin Hoyt, Solicitor General of the United States, was Assistant Attor- 

ney General of the United States, and is an alumnus of Yale and Pennsyl- 
vania Universities. 

William Loeb, Jr., of New York, Secretary to President Roosevelt, was Secretary 
to the New York State Assembly and Senate, to the Governor of New York, 
and to the Vice-President of the United States. He was educated at the public 
schools of Albany, New York. 

5. Charles Joseph Bonaparte, of Baltimore. Secretary of the Navy, is a prominent 

member of the Maryland Bar. He is a graduate of Harvard University. 

6. Elihu Root, of New York, Secretary of State, was the United States Attorney for 

the Southern District of New York, a member of the Alaskan Boundary Com- 
mission and also Secretary of War. He is a graduate of Hamilton College and 
the University of the City of New York. 

7. William Howard Taft, of Cincinnati, Secretary of War, and President of the 

American Red Cross, was Assistant Prosecuting Atttorney, then Judge of the 
Superior Court of Cincinnati. He was sometime Collector of Internal Rev- 
enue, Solicitor General of the United States, the United States Circuit Court 
Judge and the first civil Governor of the Philippine Islands. He is a graduate 
of Yale Universit}^ and Cincinnati College. 

8. William Henry Moody, of Massachusetts, Attorney General, was District Attorney 

in Massachusetts, and the United States Representative, and Secretary of the 
Navy. He is a graduate of Phillips Academy and Harvard University. 

9. James Wilson, of Iowa, Secretary of Ae-riculture, was Speaker of the State House 

of Assembly, and a United States Representative from his State. He was also 
a regent of the Iowa State University, and sometime Professor at the Iowa 
Agricultural College at Ames. 

10. Leslie M. Shaw, of Iowa, Secretary of the Treasury, was twice Governor of the 

State of Iowa. He is a graduate of Cornell University and also the Iowa 
College of Law. 

11. Victor Howard Metcalf, of Oakland, California, Secretary of Commerce and Labor, 

was the United States Representative from his State. He is a prominent mem- 
ber of the California Bar, and also is a graduate of the Utica Free Academy, 
Russell's Military Academy, and Yale Universit3\ of New Haven. 

12. George Bruce Cortelyou, of New York, Postmaster General, was stenographer to 

President Cleveland, Secretary to President Roosevelt and also to McKinley. 
He was appointed the first Secretary of Commerce and Labor and also Chair- 
man of the Republican National Committee. He is a graduate of the George- 
town University and Columbian (now Georg^e Washington) LTniversity of 
Washington, D. C. 

13. Vespasian Warner, United States Commissioner of Pensions, was United States 

Representative from Illinois. He is a graduate of Harvard University. 

14. Martin A. Knapp, of New York, Chairman of the Interstate Commerce Commis- 

sion, was Corporation Counsel in his State, and Professor of Columbian (now 
George Washington) University and is a graduate of Wesleyan University. 



THE PRESIDENT. I37 

the State legislature who appoint the Senators have ever 
since been and ever will be composed of the most en- 
lightened, intelligent, educated and respected citizens. 
So that those who are entrusted with such confidence and 
power, possess every consideration that can influence the 
human mind, such as honor, oath, reputation, conscience, 
the love of country, family affections and attachments, 
that afford security for their fidelity. 

Conclusive evidence resulting from the experience and 
development of the separate and distinct powers of the 
President and the Senate will never be accummulated. 
We have just grown to be at ease as it could never be 
able to transform itself into monarchial or aristocratic 
body, or any other body. But if such revolution would 
ever happen the House of Representatives with the peo- 
ple on their side who are the only legitimate fountain of 
power, and who alone are the grantor of the charter, 
will at any and all times be able to bring back the Con- 
stitution to its primitive form. 



THE COURTS 



THE COURTS 



ARTICLE IV. 

"The judicial power shall be vested in one Supreme Court and such 
inferior courts as Congress may from time to time ordain and es- 
tablish."— ^r/. ///, Sec. I, U. S. Const. 

Sec. 39. The legislative, executive and judicial powers 
of every well constructed government are co-extensive 
with each other ; that is, they are potentially co-extensive/ 
The executive department may constitutionally execute 
every law which the legislature may constitutionally 
make, and the judicial department may receive from the 
legislature the power of construing every such law. All 
governments, which are not extremely defective in their 
organization, must possess, within themselves, the means 
of expounding as well as enforcing their own laws. If 
we examine the Constitution of the United States, we 
find that its framers kept this great political principle in 
view. The first article empowers all legislative powers 
in Congress, the second article vests the whole executive 
power in the President; and the third article declares, 
"that the judicial powers of the United States shall be 

* Osborn v. the Bank of the United States, 9 Wheaton 738. 

141 



142 THE COURTS. 

vested in one Supreme Court, and in such inferior courts 
as the Congress may from time to time ordain and es- 
tablish. The judges, both of the supreme and inferior 
courts, shall hold their offices during good behavior, and 
shall, at stated times, receive for their services a compen- 
sation, which shall not be diminished during their con- 
tinuance in office." 

The standard of good behavior for the continuance in 
office of the judicial magistracy, is certainly one of the 
most valuable of the modern improvements in the prac- 
tice of government. In a monarchy, it is an excellent 
barrier to the despotism of the prince; in a republic, 
it is a no less excellent barrier to the encroachments 
and oppressions of the representative body. And it 
is the best expedient which can be devised in any gov- 
ernment, to secure a steady, upright, and impartial ad- 
ministration of law. ' 

Whoever attentively considers the different depart- 
ments of power must perceive, that in a government 
in which they are separated from each other, the ju- 
diciary, from the nature of its functions, will always 
be the least dangerous to the political right of the Con- 
stitution; because it will be least in capacity to annoy 
or injure them. The executive not only dispenses 
the honors, but holds the sword of the community; 
the legislative not only commands the purse, but it 
» No. LXXVIII Federalist 



THE COURTS. 145 

prescribes the rules by which the duties and rights 
of every citizen are to be regulated; the judiciary, on 
the contrary, has no influence over either the sword 
or the purse; no direction either of the strength or of 
the wealth of society; and can take no active reso- 
lution whatever. It may truly be said to have neither 
force nor will, but merely judgment; and must ulti- 
mately depend upon the aid of the executive arm for 
the efficacious exercise even of this faculty. 

It is further said that the judiciary is next to nothing ; 
that it can never attack with success either of the other 
two; and that all possible care is requisite to enable it to 
defend itself against their attacks. Though individual 
oppression may now and then proceed from the courts of 
justice, the general liberty of the people can never be en- 
dangered from that quarter as long as the judiciary 
remains truly distinct from both the legislature and 
executive. In the last place, that as liberty can have 
nothing to fear from the judiciary alone, but would have 
everything to fear from its union with either of the other 
departments; that, as all the effects of such an union 
must ensue from a dependance of the former on the latter, 
notwithstanding a nominal and apparent separation ; that 
as from the natural feebleness of the judiciary, it is in 
continual jeopardy of being over-powered, awed or in- 
fluenced by its co-ordinate branches ; that, as nothing can 



144 THE COURTS. 

contribute so much to its fairness and independence as 
permanency in office ; this quahty may, therefore, be just- 
ly regarded as an indispensable ingredient in its consti- 
tution, and in a great measure, as the citadel of the public 
justice and the public security. 

Sec. 40. The judicial power of the United States 
shall extend to all cases, in law and equity, arising under 
the Constitution, the laws of the United States, and treat- 
ies made under their authority; to all cases affecting 
ambassadors, other public ministers, and consuls; to all 
cases of admiralty and maritime jurisdiction; to contro- 
versies to which the United States shall be a party; 
to controversies between two or more States, between 
citizens of different States, between citizens of the same 
State, claiming lands under grants of different States, 
and between a State, or citizens thereof, and foreign 
States, citizens, or subjects.* 

By this constitutional declaration the judicial depart- 
ment receives jurisdiction, when any question respect- 
ing any of the clauses shall assume such a form that the 
judicial power is capable of acting on it. That power 
is capable of acting only when the subject is submitted 
to it by a party who asserts his rights in the form pre- 
scribed by law. It then becomes a case, and the judicial 
power shall extend to all cases, as declared by the Con- 
stitution. 

' Art. Ill, Sec. 2, U. S. Const. 



-^ 0- " t ssb 




CHIEF JUSTICE MARSHALL 



THE COURTS. 147 

A suit was brought in the Circuit Court of the United 
States for Ohio by the bank of the United States, to re- 
strain Osborn and others, officers of the State of Ohio, 
from collecting a State tax on the bank. A decree was 
rendered against the State officers, who appealed to 
the Supreme Court of the United States. In the Su- 
preme Court the respondents re-argued that the case was 
constitutionally within the National judiciary as it has 
arisen under the law of the United States, and the appel- 
lants contended that it was not, because several questions 
may arise in it which depend on the general principles 
of the law, not on any act of Congress. 

The Supreme Court affirmed the decree of the cir- 
cuit court, and the opinion was delivered by Chief Jus- 
tice Marshall.^ The celebrated jurist, in his opinion 
expounding the constitutional grant of jurisdiction, said : 
*Tf this were sufficient to withdraw a case from the 
jurisdiction of the Federal courts, almost every case, 
although involving the construction of a law, would be 
withdrawn; and a clause in the Constitution relating to 
a subject of vital importance to the Government, and 
expressed in the most comprehensive terms, would be 
construed to mean almost nothing." 

There is scarcely any case, every part of which de- 
pends on the Constitution, laws, or treaties of the 
^ Osborn v. the Bank of the United States, 9 Wheaton 738. 



148 THE COURTS. 

United States. The question whether the fact alleged 
as the foundation of the action be real or fictitious; 
whether the conduct of the plaintiff has been such as to 
entitle him to maintain his action; whether his right is 
barred; whether he has received satisfaction, or has 
in any manner released his claims, are questions, some or 
all of which may occur in almost every case, and if their 
existence be sufficient to arrest the jurisdiction of the 
court, words which seem intended to be as extensive as 
the Constitution; laws and treaties of the Union, which 
seem designed to give the courts of the Government the 
construction of all its acts, so far as they affect the 
rights of individuals, would be reduced to almost nothing. 
In those cases in which original jurisdiction is given 
to the Supreme Court, the judicial power of the United 
States cannot be exercised in its appellate form. In 
every other case the power is to be exercised in its 
original or appellate form, or both, as the wisdom of 
Congress may direct. With the exception of these cases 
in which original jurisdiction is given to the Supreme 
Court, there is none to which the judicial power ex- 
tends, from which the original jurisdiction of the in- 
ferior courts is excluded by the Constitution. Original 
jurisdiction, so far as the Constitution gives a rule, is 
co-extensive with the judicial power. We find in the 
Constitution no prohibition to its exercise in every case 



THE COURTS. 1 49 

in which the judicial power can be exercised. It would 
be a very bold construction to say that this power could 
be applied in its appellate form only, to the most im- 
portant class of cases to which it is applicable. 

The Constitution establishes the Supreme Court, and 
defines its jurisdiction. It enumerates cases in which 
its jurisdiction is original and exclusive; and then de- 
fines that which is appellate, but does not insinuate that, 
in any such case, the power can not be exercised in its 
original form by courts of original jurisdiction. It is 
not insinuated that the judicial power, in cases depend- 
ing on the character of the cause, cannot be exercised 
in the first instance in the courts of the Union, but must 
first be exercised in the tribunals of the State; tribunals 
over which the Government of the Union has no ade- 
quate control, and which may be closed to any claim as- 
serted under a law of the United States. 

We perceive, then, no ground on which the proposi- 
tion can be maintained, that Congress is incapable of 
giving the Circuit Court original jurisdiction in any case 
to which the appellate jurisdiction extends. 

Sec. 41. The National and the State courts are not 
foreign to each other, but are interdependent, co-operat- 
ing systems, and together constitute one vast machine 
of justice, planned and operated that a remedy may be 
found for every wrong, and that protection is afforded 



150 THE COURTS. 

the weakest against the most powerful, without regard 
to residence or nationality/ 

Each State has a common law of its own, derived, in 
the case of most of them, from the common law of Eng- 
land, but modified more or less in adoption by circum- 
stances, usages, or statutes. This common law deter- 
mines to a great extent the civil right of the people, and it 
also makes many acts punishable as crimes. But the 
United States, as such, can have no common law. 

No act can be a crime against the United States which 
is not made or recognized as such by Federal Constitu- 
tion, law, or treaty.^ But the Federal courts sitting in 
the several States, where their jurisdiction depends upon 
the character or residence of the parties who sue or are 
sued, administer for the most part the local law, and 
they take notice of the State common law, usages, stat- 
utes, and apply them as the State courts would apply 
them in like controversies. In all such cases of the de- 
cisions of the State courts, affording precedents for 
their guidance, the Federal courts are to follow them 
for uniformity, and the State decisions will thus become 
the final rule and authority on questions of State law, 
for like reasons to those which require finality to Federal 
decisions on questions of Federal law. 

* Claflin V. Houseman, 93 U. S. 130. 

^ United States v. Hudson, 7 Crouch. 32. 



THE COURTS. I5I 

But there are certain cases in which this rule can not 
be applied, because the reasons on which it rests are in- 
applicable. It can not, for example, be applied in any 
case where the decision of the State court involves a 
question of National authority, or any right, title, priv- 
ilege, or exemption derived from or claimed under the 
Constitution, or any law or treaty of the United States. 
Let us examine applicable and inapplicable cases with 
patience. 

In the case of Bock v. Perkins, Mr. Justice Harlan 
said: That every marshal of the United States, as well 
as his deputy, must take an oath or affirmation that he 
will faithfully execute all lawful precepts directed to 
him, and in all things well and truly perform the duties 
of his office. The marshal must also give bond, with 
securities, for the faithful performance of the duties of 
his office by himself and deputies. And marshals and 
their deputies have, in the respective States, the same 
powers in executing the laws of the United States as 
sheriffs and their deputies have in executing the laws of 
such States. A case, therefore, depending upon the in- 
quiry whether a marshal or his deputy has rightfully exe- 
cuted a lawful precept directed to the former from a court 
of the United States, is one arising under the laws of the 
United States; and for any failure in that regard, he 
would be liable to suit by anyone thereby injured. This 



152 THE COURTS. 

case was, therefore, one arising under the laws of the 
United States, and removable from the State court/ 

In Buck V. Colbath we may perceive the working of 
the two systems. Colbath sued Buck in a State court in 
trespass for taking his goods, the latter pleading simply 
that he was marshal of the United States, and had seized 
the goods under an attachment against the property of 
certain parties named in the writ. The Supreme Court, 
upon error to the highest court of the State, held that 
the marshal was guilty of trespass in levying upon the 
property of one against whom the writ did not run, and 
could be sued therefore in the State court — the mere 
fact that the writ issued from a Federal Court consti- 
tuting no defense.* The judgment in that case against 
the marshal was reviewed in the Supreme Court under 
the act of Congress authorizing such review in cases 
where a party specially claimed the protection of an au- 
thority exercised under the United States, and the de- 
cision withheld the protection so claimed. 

Sec. 42. The Constitution declares that the judicial 
power of the United States shall extend to all cases af- 
fecting ambassadors or other public ministers and consuls. 

Judicial act of 1789 invested the District Courts of 
the United States with "jurisdiction, exclusively of the 
courts of the several States of all suits against consuls or 

^ Bock V. Perkins, 130 U. S. 628. In re Neagle, 135 U. S. i. 
^ Buck V. Colbath, 3 Wall. 334. Ex parte Crouch. 112 U. S. 178. 



THE COURTS. 1 53 

vice-consuls," except for offences of a certain character; 
the Supreme Court, with "original, but not exclusive, 
jurisdiction of all suits, in which a consul or vice-consul 
shall be a party" and the Circuit Courts, with "jurisdic- 
tion of civil suits in which an alien is a party." In this act 
we have an affirmance by the first Congress — many of 
whose members participated in the convention which 
adopted the Constitution, and were, therefore, convers- 
ant with the purposes of its framers — of the principle 
that the original jurisdiction of the Supreme Court, of 
cases in which a consul or vice-consul is a party, is not 
necessarily exclusive, and that the subordinate courts of 
the Union may be invested with jurisdiction of cases af- 
fecting such representatives of foreign governments. 

Very early after the passage of that act, the case of the 
United States against Ravara,* was tried in the Circuit 
Court of the United States for the District of Pennsylva- 
nia, before Justice Wilson and Iredell of the Supreme 
Court, and the district judge. It was an indictment 
against a consul for a misdemeanor of which it was 
claimed the Circuit Court had jurisdiction under the 
eleventh section of the Judiciary Act, giving Circuit 
Courts "exclusive cognizance of all crimes and offences 
cognizable under the authority of the United States," ex- 
cept where that act "otherwise provides, or the laws of 
* 2 Dall. 297. 



154 THE COURTS. 

the United States shall otherwise direct, and concurrent 
jurisdiction with the district courts of the crimes and of- 
fences cognizable therein." In behalf of the accused it 
was contended that the Supreme Court, in virtue of the 
constitutional grant to it of original jurisdiction in all 
cases affecting ambassadors, other public ministers, and 
consuls, had exclusive jurisdiction of the prosecution 
against him. Mr. Justice Wilson and the district judge 
concurred in overruling this objection. They were of 
the opinion that although the Constitution invested the 
Supreme Court with original jurisdiction, in cases affect- 
ing consuls, it was competent for Congress to confer con- 
current jurisdiction, in those cases, upon such inferior 
courts as might by law be established. The indictment 
was sustained, and the defendant, upon the final trial, 
at which Chief Justice Jay presided, was found guilty. 
He was subsequently pardoned on condition that he 
would surrender his commission and exequatur. 

United States against Ortega,* which was a criminal 
prosecution in a circuit court of the United States, for 
the offence of offering personal violence to a public min- 
ister, contrary to the law of nations and the act of Con- 
gress, one of the questions certified for decision was 
whether the jurisdiction conferred by the Constitution 
upon the Supreme Court, in cases affecting ambassadors 
^ II Wheat. 467. 



THE COURTS. 1 57 

or other public ministers and consuls, was not only orig- 
inal but exclusiye of the circuit courts. But its decis- 
ion was waived and the case determined upon another 
ground. Of that case it was remarked by Chief Jus- 
tice Taney/ that an expression of opinion upon that 
question would not have been waived had the court re- 
garded it as settled by previous decisions. 

In Graham v. Stucken Mr. Justice Nelson said that'' 
"it could hardly have been the intention of the statesmen 
who framed our Constitution to require that one of our 
citizens who had a petty claim of even less than five 
dollars against another citizen, who had been clothed by 
some foreign government with the consular office, should 
be compelled to go into the Supreme Court to have a jury 
summoned in order to enable him to recover it; nor 
could it have been intended that the time of that court,, 
with all its high duties to perform, should be taken up- 
with the trial of every petty offence that might be com- 
mitted by a consul in any part of the United States; 
that consul, too, being often one of our own citizens." 
Such was the state of the law when the revised statutes, 
of the United States went into operation. By sectioni 
563 it was provided that "the District Courts shall have- 
jurisdiction of all suits against consuls or vice-consuls," 
except for certain offences; by section 629, that "the; 

^ Gittings V. Crawford, Taney's Dec, 15. 
" Graham v. Stucken, 4 Blatch, 30. 



158 THE COURTS. 

circuit courts shall have original jurisdiction" of certain 
classes of cases, among which are civil suits in which an 
alien is a party; by section 687, that the Supreme Court 
shall have "original but not exclusive jurisdiction of all 
suits in which a consul or vice-consul is a party" ; and by 
section 711, that the jurisdiction vested in the courts of 
the United States in the cases and proceedings there men- 
tioned, among which are "suits against ambassadors or 
other public ministers or their domestics, or domestic 
servants, or against consuls or vice-consuls," shall be ex- 
clusive of the courts of the several States. But by the 
act of February 18, 1875, that part of section 711, last 
quoted, was repealed,' that, by the existing law, there 
is no statutory provision which, in terms, makes the juris- 
diction of the courts of the United States exclusive of 
the State courts in suit against consuls or vice-consuls. 

Sec. 43. The judicial power of the United States is 
made to extend to all cases of admiralty and maritime 
jurisdiction. 

It is said that those who framed the Constitution, and 
the lawyers in America in that day were familiar with a 
different and more extensive jurisdiction in most of the 
States when they were Colonies than was allowed in Eng- 
land, from the interpretation which was given by the 
common law courts to the restraining statutes of Rich- 
' 18 Stat. 318. 



THE COURTS. 1 59 

ard II and Henry IV. The commission to the vice- 
admirals in the Colonies in North America, insular and 
continental, contained a much larger jurisdiction than 
existed in England when they were granted. 

That to the governor of New Hampshire invested him 
with the power of an admiralty judge, declares the juris- 
diction to extend "throughout all and every the sea- 
shores, public streams, ports, fresh water rivers, creeks, 
and arms, as well as of the sea as of the rivers and coasts 
whatsoever, of our said provinces." ^ 

The admirality jurisdiction, ancient and circumscribed 
as it afterwards was in England, and as it was exercised in 
the Colonies, was necessarily the subject of examination, 
when Congress was preparing the declaration and re- 
solves of the 14th of October, 1774, in which it is said 
"that the several acts of 4 Geo. Ill, c. 15, 34; 5 Geo. Ill, 
c. 25 ; 6 Geo. Ill, c. 52 ; 7 Geo. Ill, c. 41 ; 8 Geo. Ill, 
c. 22, which impose duties for the purpose of raising a 
revenue in America, extend the power of the admiralty 
courts beyond their ancient limits." ' The ancient limits 
of admiralty jurisdiction repeatedly alluded to by men 
fully acquainted with every part of English jurispru- 
dence as they had believed it had existed in England at 
one time much beyond what was at that time its exercise 
in her admiralty courts. 

^ Journals of Congress, 21, 33, 47. 



l60 THE COURTS. 

Sec. 44. In the case of the steamship Magnolia^ 
which was a proceeding in admiralty on account of a 
colhsion occurring in the Alabama River, in the county 
of Wilcox, in the State of Alabama, it was contended 
that the jurisdiction in admiralty did not attach, be- 
cause, first, the collision was within the body of the 
county, and second, because it was at a point on the 
river above tide water. But the contentions were over- 
ruled on the ground, first, that after the adoption of the 
Constitution the exercise of admiralty and maritime juris- 
diction over its public rivers, ports, and havens, was 
surrendered by each State to the Government of the 
United States, without an exception as to the subjects 
or places, the Supreme Court cannot interpolate one 
into the Constitution, or introduce an arbritary dis- 
tinction which has no foundation in reason or prece- 
dent, therefore, the objection to jurisdiction that the 
collision was within the county can have no greater 
force or effect from the fact that the Alabama River 
so far as it is navigable, is wholly within the boundary 
of the State; second, that though in England the flux 
and reflux of the tide was a sound and reasonable test of 
a navigable river, because on that island tide-water and 
navigable water were synonymous terms, yet there is 
certainly nothing in the ebb and flow of the tide that 
^ 20 How. 296. 



THE COURTS. l6l 

makes the waters peculiarly suitable for admiralty juris- 
diction, nor anything in the absence of a tide that renders 
it unfit. The case of Thomas Jefferson, lo Wheaton, 
and others, which has hastily adopted this arbitrary and 
false test of navigable waters, were necessarily overruled. 
Sec. 45. The steamship Moses Taylor, a vessel of 
over one thousand tons burden, was owned by Marshall 
O. Roberts of the city of New York, and was employed 
by him in navigating the Pacific Ocean, and in carrying 
passengers and freight between Panama and San Fran- 
cisco. In October, 1863, the plaintiff in the court below, 
the defendant in error in the Supreme Court, entered 
into a contract with Roberts, as owner of "this steamship, 
by which, in consideration of one hundred dollars, Rob- 
erts agreed to transport him from New York to San 
Francisco as a steerage passenger, with seasonable dis- 
patch, and to furnish him with proper and necessary food, 
water, and berth, or other conveniences for lodging, on 
the voyage. For alleged breach of this contract, the 
present action was brought under the statute of the 
State of California, in a county court of the State. The 
agent for the Moses Taylor appeared to the action and 
denied the jurisdiction of the court, insisting that the 
cause of action was one over which the courts of admir- 
alty had exclusive jurisdiction, which objection to the 
jurisdictions having been overruled and judgment for 



1 62 THE COURTS. 

the amount claimed given. The case is brought into the 
Supreme Court of the United States by writ of error 
from that court. 

Justice Field, in delivering the opinion of the court, 
is reported to have said the case presented is clearly one 
within the admiralty and maritime jurisdiction of the 
Federal courts. The contract for the transportation of 
the plaintiff was a maritime contract. As stated in the 
complaint, it related exclusively to a service to be per- 
formed on the high seas, and pertained solely to the busi- 
ness of commerce and navigation. There is no dis- 
tinction in principle between a contract of this character 
and a contract for the transportation of merchandise. 
The same liability attaches upon their execution both to 
the owner and the ship. The passage money in the one 
case is equivalent to the freight money in the other. 
A breach of either contract is the appropriate subject of 
admiralty jurisdiction. 

Particularly by the legislation of the Congress, the 
cognizance of civil causes of admiralty and maritime juris- 
diction vested in the district courts by the ninth section 
of the judiciary act may be supported upon like consid- 
erations. It has been made exclusive by Congress, and 
that is sufficient, even if we should admit that in the 
absence of the legislation the State court might have 



% 

THE COURTS. 1 63 

taken cognizance of these causes. The case of the 
Moses Taylor is not within the saving clause of the 
ninth section. That clause only saves to suitors "the 
right of a common-law remedy, where the common-law 
is competent to give it." It is not a remedy in the com- 
mon-law courts which is saved, but a common-law rem- 
edy. A proceeding in rem, as used in the admiralty 
courts, is not a remedy afforded by the common-law; 
it is a proceeding under the civil law. When used in the 
common-law courts, it is given by statute. 

Sec. 46. In 1891, the case of Manchester v. Mass- 
achusetts; the case of criminal prosecution in the courts 
of Massachusetts to impose a fine for violation of a State 
statute regulating the method of fishing in Buzzard's 
Bay, The place where the acts charged were com- 
mitted was in that part of the bay which was within a 
marine league from the Massachusetts shore at low 
water mark. The Supreme Court of Massachusetts held 
the statute to be constitutional. And the defendant sued 
out a writ of error to the Supreme Court/ 

The highest court of the United States is reported to 
have said that the statute of Massachusetts, which the 
defendant is charged with violating, is, in terms, con- 
fined to waters "within the jurisdiction of this Com- 
monwealth" ; and it was evidently passed for the preser- 
^ Manchester v. Massachusetts, 139 U. S. 240. 



164 THE COURTS. 

vation of the fish, and makes no discrimination in favor 
of citizens of Massachusetts and against citizens of other 
States. If there be a liberty of fishing for swimming 
fish in the navigable waters of the United States common 
to the inhabitants or the citizens of the United States, upon 
which we express no opinion, the statute may well 
be considered as an impartial and reasonable regulation 
of this liberty; and the subject is one which a State 
may well be permitted to regulate within its territory, in 
the absence of any regulation by the United States. 
The preservation of fish, even though they are not used 
as food for human beings, but as food for other fish 
which are so used, is for the common benefit; and we 
are of the opinion that the statute is not repugnant to 
the Constitution and the laws of the United States. 

It may be observed that section 4398 of the Revised 
Statutes (a re-enactment of section 4 of the joining 
resolution of February 9, 1871) provides as follows 
in regard to the Commissioners of Fish and Fisheries: 
"The commissioners may take or cause to be taken at 
all times, in the waters of the sea-coast of the United 
, States, where the tide ebbs and flows, and also in the 
waters of the lakes, such fish or specimens thereof as 
may, in his judgment, from time to time, be needful or 
proper for the conduct of his duties, any law, custom, or 
usage of any State to the contrary notwithstanding." 



1 



1 

THE COURTS. 165 

This enactment may not improperly be construed as 
suggesting that, as against the law of a State, the Fish 
Commissioner might not otherwise have the right to 
take fish in places covered by the State law. 

The pertinent observation may be made that, as Con- 
gress does not assert by legislation a right to control 
pilots in bays, inlets, rivers, harbors, and ports of the 
United States, but leaves the regulation of that matter 
to the State, so, if it does not assert by affirmative leg- 
islation its right or will to assume the control of man- 
haden fisheries in such bays, the right to control such 
fisheries must remain with the State which contains 
such bays.^ 

We do not consider the question whether or not 
Congress could have the right to control the manhaden 
fisheries which the State of Massachusetts assumes to 
control; but we mean to say only that, as the right of 
control exists in the State in the absence of the affirm- 
ative action of Congress taking such control, the fact 
that Congress has never assumed the control of such 
fisheries is persuasive evidence that the right to control 
them still remains in the State. 

Sec. 47. The judicial power extends "to controver- 
sies to which the United States shall be a party." It is 
a fundamental principle of public law, affirmed by a long 
^ Cooley V. Board of Warden, 12 How. 299. 



1 66 THE COURTS. 

series of decisions of the Supreme Court, that no suit 
can be maintained against the United States without ex- 
press authority of Congress. The United States, by 
various acts of Congress, have consented to be sued 
in their own courts in certain classes of cases; but they 
have never consented to be sued in the courts of a State 
in any case. Neither the Secretary of War, nor the 
Attorney- General, nor any subordinate of either, has 
been authorized to waive the exemption of the United 
States from judicial process, or to submit the United 
States or their property to the jurisdiction of the court 
in a suit brought against their officers. 

Chief Justice Marshall had occasion to remark that 
"There seems to be a necessity for admitting that the 
fact might be disclosed to the court by the suggestion of 
the attorney for the United States."^ "However," 
says Mr. Justice Gray, "the answer actually filed by the 
district attorney, is treated as undertaking to make 
the United States a party defendant in the cause, and 
liable to have judgment against them, was in excess of 
the instructions of the Attorney General, and of any pow- 
er vested by law in him or in the district attorney, and 
could not constitute 'voluntary submission by the United 
States to the jurisdiction of the court.' " ' 

Sec. 48. The specific power under examination will 

* The Exchange, 7 Cranch. 116. 

^ Stanley v. Schwalby, 162 U. S. 255. 



THE COURTS. 167 

also extend "to controversies between two or more 
States." 

In controversies between two nations concerning nat- 
ional boundary, it is scarcely possible that the courts of 
either should refuse to abide by the measures adopted 
by its own government. There being no common tri- 
bunal to decide between them, each determines for 
itself on its own rights, and if they cannot adjust their 
differences peaceably the right remains with the strong- 
est.^ The judiciary is not that department of the govern- 
ment to which the assertion of its interest against for- 
eign powers is confided; and its duty commonly is to de- 
cide upon individual rights, according to those principles 
which the political departments of the nations have es- 
tablished. 

If the cause of the Nation has been a plain one, its 
courts would hesitate to pronounce it erroneous. 

If those departments which are intrusted with the for- 
eign intercourse of the Nation, which assert and maintain 
its interest against foreign powers, have unequivocally 
asserted its rights of dominion over a country of which 
it is in possession, and which it claims under a treaty; 
if the legislature has acted on the construction thus as- 
serted, it is not in its own courts that this construction is 
to be denied. A question like this respecting the bound- 
aries of nations is, as has been truly said, more a political 
'Foster v. Nelson, 2 Pet. 253, 307, 319. 



l68 THE COURTS. 

than a legal question; and in its discussion the courts of 
every country must respect the pronounced will of the 
legislature. 

These constructions relate to questions of boundary 
between independent nations and have no application to 
a question of that character arising between the general 
government and one of the States composing the Union, 
or between two States of the Union. 

At the time of the adoption of the Constitution, 
there existed controversies between eleven States in 
respect to boundaries which had continued from the first 
settlement of the Colonies. The necessity for the crea- 
tion of some tribunal for the settlement of these and like 
controversies that might arise under the new govern- 
ment to be formed must therefore have been perceived 
by the framers of the Constitution, and consequently 
among the controversies to which the judicial power of 
the United States was extended by the Constitution we 
find those between two or more States. And that a con- 
troversy between two or more States, in respect to bound- 
ary is one to which, under the Constitution, such judicial 
power extends, is no longer an open question in the Su- 
preme Court.^ 

^ Rhode Island v. Massachusetts, 12 Pet. 657. New Jersey v. New 
York, 5 Pet. 284, 290. Missouri v. Iowa, 7 How. 660. Florida v. 
Georgia, 17 How. 473. Alabama v. Georgia, 23 How. 505. Virginia 
V. West Virginia, 11 Wall. 39, 55. Missouri v. Kentucky, 11 Wall 
395. Indiana v. Kentucky, 136 U. S. 479. Nebraska v. Iowa, 143 
U. S. 357. 



THE COURTS. 169 

In New Jersey v. New York, Chief Justice Marshall 
said: "It has then been settled by our predecessors, on 
great deliberation, that this court may exercise its original 
jurisdiction in suits against a State, under the authority 
conferred by the Constitution and existing as acts of 
Congress." And in Virginia v. West Virginia, it was 
said by Mr. Justice Miller to be the established doctrine 
of the Supreme Court "that it has jurisdiction of ques- 
tions of boundary between two States of this Union, and 
that this jurisdiction is not defeated because in deciding 
that question it becomes necessary to examine into and 
construe compacts or agreements between those States, 
or because the decree which the court may render, affects 
the territorial limits of the political jurisdiction and sov- 
ereignty of the States which are parties to the proceed- 
ing." So, in United States v. Texas, 143 U. S. 628, 
Mr. Justice Harland used the following language : "The 
States of the Union have agreed, in the Constitution, 
that the judicial power of the United States shall extend 
to ALL cases arising under the Constitution, laws and 
treaties of the United States, without regard to the 
character of the parties (excluding, of course, suits 
against a State by its own citizens or by citizens of other 
States, or by citizens or subjects of foreign States), and 
equally the Union upon an equal footing in all respects 
with the other States." 



170 THE COURTS. 

But there are few other cases in which the court of 
the United States has decHned its aid, although they are 
controversies between two States. 

In Towley v. Lindsey and Fowler v. Miller, actions of 
ejectment were pending in the Circuit Court of the United 
States for the district of Connecticut between private 
citizens for lands over which the States of Connecticut 
and New York both claimed jurisdiction; and a writ of 
certiorari to remove those actions into the Supreme Court 
as belonging exclusively to its jurisdiction, was refused, 
because a State was neither nominally nor substantially 
a party to them.^ Upon a bill in equity afterwards filed 
in the Supreme Court by the State of New York against 
the State of Connecticut to stay the actions of ejectment, 
the Supreme Court refused the injunction prayed for be- 
cause the State of New York was not a party to them, 
and had no such interest in their decisions as would sup- 
port the bill.^ 

The Supreme Court has declined to take jurisdiction 
of suits between States to compel the preformance of 
obligations which, if the States had been independent 
nations, could not have been enforced judicially, but only 
through the political departments of their governments. 
Thus, in Kentucky v. Dennison, where the State of Ken- 
tucky, by her governor, applied to the Supreme Court 

' 3 Dall. 411. 

' New York v. Connecticut, 4 Dall. i, 3. 



THE COURTS. I/I 

in the exercise of its original jurisdiction for a writ of 
mandamus to the governor of Ohio, to compel him to 
surrender a fugitive from justice, the Supreme Court, 
while holding that the case was a controversy between 
two States, decided that it had no authority to grant the 
writ.' 

Sec. 49. Many questions might arise as to the juris- 
diction of the Federal Courts over controversies "between 
a State and citizens of another State." 

The object of vesting in the court of the United States 
jurisdiction of suits by a State against the citizens of an- 
other was to enable such controversies to be determined 
by a National tribunal, and thereby to avoid the partiality, 
or suspicion of partiality, which might exist if the plain- 
tiff State were compelled to resort to the courts of the 
States of which the defendants were citizens. 

The grant is of "judicial power" and was not intended 
to confer upon the court of the United States jurisdiction 
of a suit or prosecution by one State, of such a nature 
that it could not, on the settled principles of public and 
international law, be entertained by the judiciary of the 
other State at all.' 

Sec. 50. "The courts of no country execute the penal 
laws of another," stated Chief Justice Marshall. And 
this maxim applies not only to prosecutions and sentences 

* Kentucky v. Dennison, 24 How. 66. 

" Wisconsin v. Pelican Ins. Co., 127 U. S. 265. 



172 THE COURTS. 

for crimes and misdemeanors, but to all suits in favor of 
the State for the recovery of pecuniary penalties for any 
violation of statutes for the protection of its revenue, or 
municipal laws, and to all judgments for such penalties. 
If this were not so, all that would be necessary to give 
ubiquitous effect to a penal law would be to put the claim 
for a penalty into the shape of a judgment. 

It is true that if the prosecution in the courts of one 
country for a violation of its municipal law is in rem to 
obtain a forfeiture of specific property within its juris- 
diction, a judgment of forfeiture, rendered after due 
notice, and vesting the title of the property in the State, 
will be recognized and upheld in the courts of any other 
country in which the title to the property is brought in 
issue.^ But the recognition of a vested title in property 
is quite different from the enforcement of a claim for a 
pecuniary penalty. In the one case, a complete title in 
the property has been acquired by the foreign judgment ; 
in the other, further judicial action is sought to compel 
the payment by the defendant to the plaintiff of money 
in which the plaintiff has not as yet acquired any specific 
right. 

The application of the rule to the courts of the several 
States and of the United States is not affected by the 
provisions of the Constitution and of the Act of Congress 

^ Rose V. Himely, 4 Cranch, 241. Hudson v. Guestier, 4 Cranch. 
293. Bradstreet v. Neptune Ins. Co., 3 Sumner 600. 



Chief Justice and Associate Justices of the Supreme Court of 
the United States, 1 906 



I. Oliver Wendell Holmes, of Massachusetts, Associate Justice of the United St;:tes 
Supreme Court, was professor of Harvard University and Chief Justice of the 
State Supreme Judicial Circuit Court. He is an alumnus of Yale and Har- 
vard Universities. 

2. Rufus W. Peckham, of New York, Associate Justice of the United States Supreme 

Court, was county District Attorney, an Albany Corporation Counsel, a Justice 
of the Supreme Court and a Justice of the Court of Appeals of his State. He 
was educated at the public schools of Philadelphia and the Albany Academy. 

3. Joseph McKenna, of San Francisco, Associate Justice of the United States Supreme 

Court, was Solano County District Attorney, a member of the State Legislature, 
a United States Representative, a United States Circuit Judge, and a United 
States Attorney General. He was educated at St. Joseph's College, and the 
Collegiate Institute. 

4. William R. Day, of Ohio, Associate Justice of the United States Supreme Court, 

was Judge of the Court of Common Pleas, the United States District Judge, 
Secretary of State of the United States, Chairman of the Spanish-American 
Peace Commission, and the United States Circviit Judge. He is a graduate of 
the University of Michigan. 

5. Henry Billings Brown, of Massachusetts, (just retired). Associate Justice of the 

United States Supreme Court, was the State Circuit Judge, the United States 
Marshal, the United States Attorney, the United States and District Judge. He 
is an alumnus of Yale, Harvard and Michigan Universities. 

6. John Marshall Harlan, of Kentucky, Associate Justice of the United States Supreme 

Court, was a County Judge of his State, a candidate for Governor and also a 
candidate for the Vice-Presidency. He was also Chairman of the State Dele- 
gation to the Republican National Convention. He is an alumnus of the Center 
College and the Pennsylvania University. 

7. Melville Weston Fuller, of Illinois, Chief Justice of the United States Supreme 

Court, was a member of the State Constitutional Convention, of the State Legis- 
lature, and also a delegate to the Democratic National Convention. He is an 
alumnus of the Northwestern University, Bowdoin College, Yale and Harvard 
Universities, and also Dartmouth College. 

8. David Josiah Brewer, of Kansas, Associate Justice of the United States Supreme 

Court, was, in his State, County Attorney, the United States Commissioner, 
the Judge of the Probate and Criminal Courts, the Justice of the State Supreme 
Court, the United States District, and also the United States Circuit Court 
Judge. He is a graduate of Yale University and the Albany Law School. 

9. Edward Douglass White, of Louisiana, Associate Justice of the United States 

Supreme Court, was State Senator, State Supreme Court Justice, and a 
United States Senator. He was educated in Georgetown University at Wash- 
ington, D. C. 



THE COURTS. 1 75 

by which the judgments of the courts of any State are to 
have such faith and credit given to them in every court 
within the United States as they have by law of usage 
in the State in which they were rendered. Those pro- 
visions estabhsh a rule of evidence, rather than of juris- 
diction. While they make the record of a judgment 
rendered after due notice in one State, conclusive evidence 
in the courts of another State, or of the United States, 
of the matter adjudged they do not effect the jurisdiction, 
either of the court in which the judgment is rendered, 
or of the court in which it is offered in evidence. 

Sec. 51. Mr. Justice Iredell said: "But in respect to 
the subject-matter upon which such jurisdiction is to be 
exercised, used the word 'controversies' only.* The Act 
of Congress more particularly mentions civil controver- 
sies, a qualification of the general word in the Constitu- 
tion, which I do not doubt every reasonable man will 
think was well warranted, for it can not be presumed that 
the general word 'controversies' was intended to include 
any proceedings that relate to criminal cases, which, in 
all instances that respect the same government only, are 
uniformly considered of a local nature, and to be de- 
cided by its particular laws." Chief Justice Jay, in sum- 
ming up the various classes of cases to which the judicial 
power of the United States extends, used "demands" — 

* Chisholm v. Georgia, 2 Dall. 419. 



176 THE COURTS. 

a word quite inappropriate to designate criminal or penal 
proceedings — as including everything that a State could 
prosecute against citizens of another State in a National 
court. 

Original jurisdiction of the Supreme Court is con- 
ferred by the Constitution, without limit of the amount in 
controversy, and Congress has never imposed — if, in- 
deed, it could impose — any such limit. If the Supreme 
Court has original jurisdiction of any case, it must follow 
that any action upon a judgment obtained by a State in 
her own courts against a citizen of another State for the 
recovery of any sum of money, however small, by way 
of a fine for any offence however petty, against her laws 
could be brought in the first instance in the Supreme 
Court of the United States. That can not have been the 
intention of the convention in framing, or of the people 
in adopting, the Federal Constitution.' 

Sec. 52. As to controversies "between citizens of the 
different States," under the act of Congress in Circuit 
Courts of the United States should have original cogniz- 
ance of all suits of a civil nature at common law or in 
equity in which there should be a controversy between 
citizens of different States. 

In Strawbridge v. Curtis,* it was held that if there be 
two or more joint plaintiffs and two or more joint de- 

* Wisconsin v. Pelican Ins. Co., 127 U. S. 265. 
' Strawbridge v. Curtis, 3 Cranch. 267. 



THE COURTS. 177 

fendants each of the plaintiffs must be capable of suing^ 
each of the defendants in the courts of the United States 
in order to support the jurisdiction. This decision was 
followed by later cases in which it was held that the 
courts of the United States have no jurisdiction, on the 
ground of diverse citizenship if there are two plaintiffs 
to the action who are citizens of and residents in differ- 
ent States, and the defendant is a citizen of and resident 
in a third State, and the action is brought in the State in 
which one of the plaintiffs resides. 

And in the case of Hooe v. Jamieson, * which was an 
action of ejectment brought in the Circuit Court of the 
United States for the Western district of Wisconsin, by 
the complainant, in which plaintiffs in error alleged that 
they resided in and were citizens of the city of Washing- 
ton, D. C, and that defendants all resided in and were 
citizens of the State of Wisconsin, Mr. Chief Justice 
Fuller delivered the opinion of the court and said : "We 
see no reason for arriving at any other conclusion than 
that announced by Chief Justice Marshall in Hepburn v. 
Elley, 2 Cranch. 445, February term, 1805, 'that the 
members of the American Confederacy only are the 
States contemplated in the Constitution.' That the Dis- 
trict of Columbia is not a State within the meaning of 
that instrument ; and that the courts of the United States . 
* Hooe V. Jamieson, 166 U. S. 395. ; 



178 THE COURTS. 

have no jurisdiction of cases between citizens of the Dis- 
trict of Columbia and citizens of a State." 

Sec. 53. As suits against States: by the judiciary act 
of 1789, the Supreme Court was given original jurisdic- 
tion of all controversies of civil nature between a State 
and citizens of other States or alien, and exclusive juris- 
diction where a State is a party. 

Such being the condition of the law, a most important 
and interesting case has taken place. Alexander Chis- 
holm, as executor of Robert Farquer, commenced an ac- 
tion of assumpsit in the Supreme Court against the State 
of Georgia, and process was served on the Governor and 
Attorney General. On the nth of August, 1792, after 
a process was thus served, Mr. Randolph, the Attorney- 
General of the United States, as counsel for the plain- 
tiff, moved for a judgment by default on the fourth day 
of the next term, unless the State should then, after no- 
tice, show cause to the contrary. At the next term, Mr. 
Ingersoll and Mr. Dallas presented a written remon- 
strance and protestation on behalf of the State against 
the exercise of jurisdiction, but in consequence of posi- 
tive instructions they declined to argue the question. Mr. 
Randolph thereupon proceeded alone, and in opening his 
argument said that he did not want the remonstrance 
of Georgia to satisfy him that the motion which he had 
made is unpopular, before the remonstrance was read. 



THE COURTS. 1/9 

he had learned from the acts of another State, whose 
will must always be dear to him, that she too con- 
demned it. 

On the 19th of February, 1793, the judgment of the 
Supreme Court was announced, and the jurisdiction sus- 
tained, four of the justices being in favor of granting 
the motion and one against it. All justices who heard 
the case filed opinions some of which were very elaborate, 
and it is evident the subject received the most careful 
consideration. 

Mr. Justice Wilson in his opinion uses this language: 
"Another declared object (of the Constitution) is, 'to 
establish justice.' This points, in a particular manner, 
to the judicial authority. And when we view this object 
In conjunction with the declaration, 'that no State shall 
pass a law impairing the obligation of contract,' we shall 
probably think that this object points in a particular 
manner to the jurisdiction of the court over the several 
States. What good purpose could this constitutional 
provision secure, if a State might pass a law impairing 
such a violation or right, to no controlling power"? 
And Chief Justice Jay: "The extension of the judiciary 
power of the United States to such controversies, appears 
to me to be wise, because it is honest and because it is 
useful. It is honest, because it provides for doing jus- 
tice without respect to persons, and by securing individ- 



>l80 THE COURTS. 

ual citizens, as well as States, in their respective rights, 
performs the promise which every free government makes 
to every free citizen, of equal justice and protection. It 
it useful, because it is honest, because it leaves not even 
the most obscure and friendless citizen without means 
of obtaining justice from a neighboring State; because it 
obviates occasions of quarrels between States on account 
of the claims of their respective citizens, because it recog- 
nizes and strongly rests on this great moral truth, that 
the justice is the same whether due from one man to a 
million, or from a million to one man ; because it teaches 
and greatly appreciates the value of our free republican 
national government, which places all our citizens on an 
equal footing, and enables each and every one of them to 
obtain justice without any danger of being overborne 
with the might and number of their opponents; and be- 
cause it brings into action, and enforces the great and 
glorious principle that the people are the sovereigns of 
this country, and consequently that fellow citizens and 
joint sovereigns can not be delegated by appearing with 
each other in their own courts to have their controversies 
determined." 

Prior to this decision, the public discussions had been 
confined to the power of the court, under the Constitu- 
tion, to entertain a suit in favor of a citizen against a 
State; many of the leading members of the convention 



THE COURTS. l8l 

arguing with great force against it. As soon as the de- 
cision was announced, steps were taken to obtain an 
amendment of the Constitution withdrawing jurisdiction. 
And on the 8th of January, 1798, the Eleventh Amend- 
ment to the Constitution, proposed and ratified by the 
requisite number of States, went into effect. That 
amendment is as follows: 

"The judicial power of the United States shall not be 
construed to extend to any suit in law or equity, com- 
menced or prosecuted against one of the United States 
by citizens of another State, or by citizens and subjects 
of any foreign power." 

Sec. 54. Afterward, it was contended that, notwith- 
standing the prohibition of the amendment, the States 
may prosecute the suits, because, as "the sovereign trustee 
of its citizens," a State is "clothed with right and faculty 
of making an imperative demand upon another indepen- 
dent State for the payment of debts which it owes to citi- 
zens of the former." * There is no doubt but one nation 
may, if it sees fit, demand of another nation the payment 
of debts owing by the latter to a citizen of the former. 
Such power is well recognized as an evidence of National 
sovereignty, but it involves also the National powers of 
levying war and making peace. But the States are not 
Nations. They are sovereign within their spheres, but 
^ New Hampshire v. Louisiana, 108 U. S. "jt. 



1 82 THE COURTS. 

their sovereignty stops short of nationahty. They can 
neither make war nor peace without the consent of the 
National government. 

It is also claimed that even if a State did surrender to 
the National government its power of prosecuting the 
claims of the citizens against another State by force, it 
got in lieu the constitutional right of suit in the National 
courts. 

There is no principle of international law which makes 
it the duty of one Nation to assume the collection of the 
claims of its citizens against another Nation, if the citi- 
zens themselves have ample means of redress without 
the intervention of their government. There is no ne- 
cessity for power in his State to sue in his behalf, when he 
can sue for himself. Therefore, the special remedy 
granted to the citizen, himself, must be deemed to have 
been the only remedy the citizens of one State could have 
under the Constitution against another State for redress 
of his . grievances, except such as the delinquent State 
law saw fit itself to grant. 

Sec. 55. Among the unwritten understanding of the 
American Constitution, perhaps the most jealously con- 
tended and contested things in the United States Supreme 
Court are religious liberty; security of the dwell- 
ing, and of persons and papers; prohibition of slavery; 



THE COURTS. 1 83 

guaranties of life, liberty, and equality; and equal pro- 
tection of the laws. 

As to religious liberty, the United States Supreme Court, 
through Mr. Chief Justice Waite, had amply discussed 
that Congress can not pass a law for the government 
of the Territories which shall prohibit the free exercise 
of religion. The first amendment to the Constitution 
expressly forbids such legislation. Religious freedom 
is guaranteed everywhere throughout the United States, 
so far as congressional interference is concerned. 

The word "religion" is not defined in the Constitution. 
We must go elsewhere, therefore, to ascertain its mean- 
ing, and nowhere more appropriately, we think, than to 
the history of the times in the midst of which the pro- 
vision was adopted. The precise point of the inquiry is : 
What is the religious freedom which has been guaranteed ? 

Before the adoption of the Constitution, attempts were 
made in some of the Colonies and States to legislate, not 
only in respect to the establishment of religion, but in 
respect to its doctrines and precepts as well. The people 
were taxed, against their will, for the support of religion, 
and sometimes for the support of particular sects to whose 
tenets they could not and did not subscribe. Punishments 
were prescribed for a failure to attend upon public wor- 
ship, and sometimes for entertaining heretical opinions. 
The controversy upon this general subject was animated 



184 THE COURTS. 

in many of the States, but seemed at last to culminate iq 
Virginia. In 1784, the House of Delegates of that State 
having under consideration "a bill establishing provision 
for teachers of the Christian religion," postponed it un- 
til the next session, and directed that the bill should be 
published and distributed, and that the people be re- 
quested to signify their opinion respecting the adoption 
of such a bill at the next session of assembly. 

This brought out a determined opposition. Amongst 
others, Mr. Madison prepared a "Memorial and Remon- 
strance," which was widely circulated and signed, and in 
which he demonstrated "that religion, or the duty we 
owe the Creator," was not within the cognizance of civil 
government. Semple's Virginia Baptists, Appendix. At 
the next session the proposed bill was not only defeated, 
but another, "for establishing religious freedom," drafted 
by Mr. Jefferson, was passed.* 

In the preamble of this act^ religious freedom is dc' 
fined and after a recital "that to suffer the civil magis- 
trate to intrude his powers into the field of opinion, and 
to restrain the profession or propagation of principles on 
supposition of their ill tendency, is a dangerous fallacy 
which at once destroys all religious liberty," it is de- 
clared "that it is time enough for the rightful purposes 
of civil government for its officers to interfere when prin- 

* I Jeff. Works, 45; 2 Howison, Hist, of Va., 298. 

* 12 Hening's Stat., 84. 



THE COURTS. 1 85 

ciples break out into overt acts against peace and for or- 
der." In these two sentences is found the true distinction 
between what properly belongs to the church and what 
to the State. 

In little more than a year after the passage of this 
statute the convention met which prepared the Constitu- 
tion of the United States. Of this convention Mr. Jeffer- 
son was not a member, he being then absent as minister 
to France. As soon as he saw the draft of the Consti- 
tution proposed for adoption, he, in a letter to a friend, 
expressed his disappointment at the absence of an express 
declaration insuring the freedom of religion,^ but was 
willing to accept it as it was, trusting that the good sense 
and honest intentions of the people would bring about 
the necessary alterations.^ Five of the States, while 
adopting the Constitution, proposed amendments. Three 
— New Hampshire, New York, and Virginia — included 
in one form or another a declaration of religious freedom 
in the changes they desired to have made, as did also 
North Carolina, where the convention at first declined to 
ratify the Constitution until the proposed amendments 
were acted upon. Accordingly, at the first session of the 
first Congress the amendment now under consideration 
was proposed with others by Mr. Madison. It met the 
views of the advocates of religious freedom, and was 

* 2 Jeff. Works, 355. 
^ Jeff. Works, 79. 



1 86 THE COURTS. 

adopted. Mr. Jefferson afterwards, in reply to an ad- 
dress to him by a committee of the Danbury Baptist As- 
sociation, took occasion to say : "Beheving with you that 
religion is a matter which lies solely between man and his 
God ; that he owes account to none other for his faith or 
his worship; that the legislative powers of the govern- 
ment reach actions only, and not opinions, — I contemplate 
with sovereign reverence that act of the whole American 
people which declared that their legislature should 'make 
no law respecting an establishment of religion or pro- 
hibiting the free exercise thereof,' thus building a wall 
of separation between church and State. Adhering to 
this expression of the Supreme will of the nation in behalf 
of the rights of conscience, I shall see with satisfaction 
the progress of those sentiments which tend to restore 
man to all his natural rights, convinced he has no na- 
tural right in opposition to his social duties." Coming as 
this does from an acknowledged leader of the advocates 
of the measure, it may be accepted almost as an author- 
itive declaration of the scope and effect of the amend- 
ment thus secured. Congress was deprived of all legis- 
lative power over mere opinion, but was left free to reach 
actions which were in violation of social duties or sub- 
version of good order.^ 

Sec. 56. In order to ascertain what is said to be in- 
' Raynold v. U. S., 98 U. S. 145. 



THE COURTS. 1 87 

tended by the Fourth Amendment to the Constitution 
under the terms "Unreasonable searches and seizures," 
it is only necessary to recall the contemporary or then re- 
cent history of the controversies on the subject, both in 
the United States and in England. Mr. Justice Bradley 
was instructed to say by the United States Supreme Court, 
that the practice had obtained in the Colonies of issuing 
writs of assistance to the revenue officers, empowering 
them, in their discretion, to search suspected places for 
smuggled goods, which James Otis pronounced "the 
worst instrument of arbitrary power, the most destructive 
of English liberty, and the fundamental principles of law, 
that ever was found in an English law book" ; since they 
placed "the liberty of every man in the hands of every 
petty officer." This was in February, 1761, in Boston, 
and the famous debate in which it occurred was perhaps 
the most prominent event which inaugurated the resist- 
ence of the colonies to the oppressions of the mother 
country. "Then and there," said John Adams, "was 
the first scene of the first act of opposition to the arbi- 
trary claims of Great Britain. Then and there the child 
Independence was born." 

These things, and the events which took place in Eng- 
land immediately following the argument about writs of 
assistance in Boston, were fresh in the memories of those 
who achieved the American independence and established 



1 88 THE COURTS. 

the American form of government. In the period from 
1762, when the ''North Briton" was started by John 
Wilkes, to April, 1766, when the House of Commons 
passed resolutions condemnatory of general warrants, 
whether for the seizure of persons or papers, occurred 
the bitter controversy between the English government 
and Wilkes, in which the latter appeared as the champion 
of popular rights, and was, indeed, the pioneer in the con- 
test which resulted in the abolition of some grievous 
abuses which had gradually crept into the administration 
of public affairs. Prominent and principal among these 
was the practice of issuing general warrants by the Sec- 
retary of State, for searching private houses for the dis- 
covery and seizure of books and papers that might be 
used to convict their owner of the charge of libel. Cer- 
tain numbers of the "North Briton," particularly No. 45, 
had been very bold in denunciation of the government, 
and were esteemed heinously libellous. By authority of 
the Secretary's warrant Wilke's house was searched, and 
his papers were indiscriminately seized. For this outrage 
he sued the perpetrators and obtained a verdict of £1,000 
against Wood, one of the party who made the search, and 
£4,000 against Lord Halifax, the Secretary of State, who 
issued the warrant. The case, however, which will al- 
ways be celebrated as being the occasion of Lord Cam- 
den's memorable discussion of the subject, was that of 



THE COURTS. 1 89 

Entick V. Carrington and Three Other King's Messen- 
gers, reported at length in 19 Howell's State Trials, 1029. 
The action was trespass for entering the plaintiff's dwell- 
ing-house in November, 1762, and breaking open his 
desks, boxes, etc., and searching and examining his pa- 
pers. The jury rendered a special verdict, and the case 
was twice solemnly argued at the bar. Lord Camden 
pronounced the judgment of the court in Michaelmas 
Term, 1765, and the law as expounded by him has been 
regarded as settled from that time to this, and his great 
judgment on that occasion is considered as one of the 
landmarks of English liberty. It was welcomed and ap- 
plauded by the lovers of liberty in the Colonies as well as 
in the mother country. It is regarded as one of the per- 
manent monuments of the British Constitution, and is 
quoted as such by the English authorities on that sub- 
ject down to the present time.* 

Sec. 57. Robertson and the other petitioners were sail- 
ors on board the Arago, and having deserted the ves- 
sel in violation of their contract as seamen they had been 
returned to said vessel against their will and by force, 
under the provisions of Congressional Act and it is 
claimed that section which provides a punishment of im- 
prisonment for desertion by any seamen, is unconstitu- 

> Boyd V. U. S., 116 U. S. 616. 



ipO THE COURTS. 

tional under the Thirteenth Amendment to the Federal 
Constitution, as involving involuntary servitude/ 

The prohibition of slavery, in the Thirteenth Amend- 
ment, is well known to have been adopted with reference 
to a state of affairs which had existed in certain States 
of the Union since the foundation of the government, 
while the addition of the words "involuntary servitude" 
were said in the Slaughter-house Cases, i6 Wall. 36, to 
have been intended to cover the system of Mexican peon- 
age and the Chinese coolie trade, the practical operation 
of which might have been a revival of the institution of 
slavery under a different and less offensive name. It is 
clear, however, that the amendment was not intended to 
introduce any novel doctrine with respect to certain de- 
scriptions of service which have always been treated as 
exceptional, such as military and naval enlistments, or to 
disturb the right of parents and guardians to the custody 
of their minor children or wards. 

The amendments, however, make no distinction be- 
tween a public and a private service. To say that persons 
engaged in a public service are not within the amendment 
is to admit that there are exceptions to its general lan- 
guage, and the further question is at once presented, 
where shall the line be drawn? We know of no better 
answer to make than to say that services which have from 

^ Robertson v. Baldwin, 165 U. S. 275. 




UNITED STATES AND STATE JUDGES 



The United States and State Judges 



1. John Kelvey Richards, Judge of the Circuit Court of the United States for the dis- 

trict of the State of Ohio. Graduate of Swarthmore College and Harvard 
University. United States Solicitor General 1897-1903. 

2. Francis E. Baker, Judge of the Circuit Court of the United States for the district 

of the State of Indiana. Graduate of State University of Indiana and Univer- 
sity of Michigan. Judge of the Supreme Court of Indiana. 

3. William W. Morrow, Judge of the Circuit Court of the United States for the dis- 

trict of California. Alumni : Wabash College of Indiana. Was special counsel 

for the United States before French and American Claims Commission, 

and also counsel before Alabama Claims Commission. Was Representative 
in Congress, 

4. Charles Holland Duell, Associate Justice Court of Appeals, D. C. (Resigned 

September, 1906, to engage in private practice.) Graduate of Hamilton Col- 
lege Law School. Ex-Commissioner of Patents. 

5. Seth Shepard, Chief Justice of the Court of Appeals of the District of Columbia. 

Alumni : Washington and Lee University and Georgetown University. Is 
professor in the latter. 

6. Louis E. McComas, Associate Justice Court of Appeals. Alumni : St. James Col- 

lege and Dickinson College. Was United States Senator from Maryland. 
Professor in Georgetown University. 

7. George Gray, Judge of the Circuit Court of the United States for the district of 

Delaware. Alumni : Princeton and Harvard Universities. Was Attorney 
General for Delaware, and also United States Senator from that State, mem- 
ber of the American Peace Commision, Paris ; and member of the International 
Permanent Court of Arbitration under the Hague Convention. 

8. Harry M. Clabaugh, Chief Justice of the Supreme Court of the District of Colum- 

bia. Dean of Georgetown University Law School. Government Delegate, 
Universal Congress Lawyers and Jurists, St. Louis, 1904. Was Attorney 
General for the State of Maryland. Graduate of College at Gettysburg. 

9. Jeter Connelly Pritchard, Judge of the United States Circuit Court for the district 

of the State of North Carolina. Was Associate Justice of the Supreme Court 
of the District of Columbia, 1903. Common school education. 
10. Alston Gordon Dayton, Judge of the United States District Court for Northern 
District of the State of West Virginia. Graduate of University of West 
Virginia. Was Representative in Congress from West Virginia. 



THE COURTS. I93 

time immemorial been treated as exceptional shall not 
be regarded as within its purview. 

From the earliest historical period the contract of the 
sailor has been treated as an exceptional one, and in- 
volving, to a certain extent, the surrender of his personal 
liberty during the life of the contract. Indeed, the busi- 
ness of navigation could scarcely be carried on without 
some guaranty, beyond the ordinary civil remedies upon 
contract, that the sailor will not desert the ship at a 
critical moment, or leave her at some place where sea- 
men are impossible to be obtained — as Molloy forcibly 
expresses it, "to rot in her neglected brine." Such de- 
sertion might involve a long delay of the vessel while 
the master is seeking another crew, an abandonment of 
the voyage, and, in some cases, the safety of the ship 
itself. Hence the laws of nearly all maritime nations 
have made provision for securing the personal attendance 
of the crew on board, and for their criminal punishment 
for desertion, or absence without leave during the life 
of the shipping articles. 

Sec. 58. It was contended that a summary proceeding 
against an attorney to exclude him from the practice of 
his profession on account of acts for which he may be 
indicted and tried by a jury is in violation of the Fifth 
Amendment of the Constitution which forbids the de- 
priving of any person of life, liberty, or property, without. 



194 THE COURTS. 

due process of law. To this contention it is to be an- 
swered by the language of Mr. Justice Bradley: "But 
the action of the court in cases within its jurisdiction is 
due process of law. It is regular and lawful method of 
proceeding, practised from time immemorial. Conced- 
ing that an attorney's calling or profession is his property, 
within the true sense and meaning of the Constitution, 
it is certain that in many cases, at least, he may be ex- 
cluded from the pursuit of it by the summary action of 
the court of which he is an attorney. The extent of the 
jurisdiction is a subject of fair judicial consideration. 
That it embraces many cases in which the ofifence is 
indictable is established by an overwhelming weight of 
authority. This being so, the question whether a particu- 
lar class of cases of misconduct is within its scope, can 
not involve any constitutional principle. 

It is a mistaken idea that due process of law requires 
a plenary suit and a trial by jury, in all cases where 
property or personal rights are involved. The important 
right of personal liberty is generally determined by a 
single judge, on a writ of habeas corpus using affidavits 
or depositions for proofs, where facts are to be estab- 
lished. Assessments for damages and benefits occasioned 
by public improvements are usually made by commis- 
sioners in a summary way. Conflicting claims of cred- 
itors, amounting to thousands of dollars, are often set- 



THE COURTS. I95 

tied by the courts on affidavits or depositions alone. And 
the courts of chancery, bankruptcy, probate, and admiral- 
ty administer an immense field of jurisdiction without 
trial by jury. In all cases that kind of procedure is due pro- 
cess of law which is suitable and proper to the nature of 
the case, and sanctioned by the established customs and 
usages of the courts. "Perhaps no definition," says Judge 
Cooley, "is more often quoted than that given by Mr. 
Webster in the Dartmouth College case : 'By the law of 
the land is most clearly intended the general law — a law 
which hears before it condemns ; which proceeds upon in- 
quiry and renders judgment only after trial. The mean- 
ing is that every citizen shall hold his life, liberty, proper- 
ty, and immunities, under the protection of the general 
rules which govern society.' " ^ 

The question, what constitutes due process of law with- 
in the meaning of the Constitution, was much considered 
in the case of Davidson v. Orleans, 96 U. S. 97 ; and Mr. 
Justice Miller, speaking for the court, said: "It is not 
possible to hold that a party has, without the due process 
of law, been deprived of his property, when, as regards 
the issue affecting it, he has, by the laws of the State, a 
fair trial in a court of justice, according to the modes of 
proceeding applicable to such a case." And, referring to 
Murray's Lessee v. Hoboken Land and Improvement Co., 
^Ex parte Wall, 107 U. S., 265. 



196 THE COURTS. 

18 How. 272, he said: "An exhaustive judicial inquiry 
into the meaning of the words 'due process of law,' as 
found in the Fifth Amendment, resulted in the unani- 
mous decision of this court, that they do not necessarily 
imply a regular proceeding in a court of justice, or after 
the manner of such courts." 

Sec. 59. Equal protection of the laws under the Four- 
teenth Amendment to the Federal Constitution was made 
clear by Mr. Justice Brewer in Gulf, Colorado & Santa 
Fe R. R. Co. V. Ellis.* The question to be determined 
in this case was whether a statute of Texas authorizing 
the recovery of attorney's fees in addition to damages in 
actions against railway companies for the killing of 
stock is constitutional on the ground that it operated to 
deprive the railway companies of property without due 
process of law, and denied to them the equal protection of 
the law in that it singled them out of all citizens and 
corporations, and required them to pay in certain cases 
attorney's fees to the parties successfully suing them, 
while it gave to them no like or corresponding benefit. 
The distinguished jurist in delivering the opinion of the 
court, said that the provision was not a legitimate police 
regulation for the purpose of inducing the railway com- 
panies to fence their tracks, and thus prevent injuries to 
stock, for there was no requirement in the State that 
' 165 U. S. 150. 



THE COURTS. I97 

tracks of railways should be fenced. Continuing, he used 
this language: "But a mere statute to compel the pay- 
ment of indebtedness does not come within the scope 
of police regulations. The hazardous business of rail- 
roading carries with it no special necessity for the prompt 
payment of debts. That is a duty resting upon all debt- 
ors, and while in certain cases there may be a peculiar obli- 
gation which may be enforced by penalties, yet nothing of 
that kind springs from the mere work of railroad trans- 
portation. Statutes have been sustained giving special 
protection to the claims of laborers and mechanics, but 
no such idea underlies this legislation. It does not aim 
to protect the laborer or the mechanic alone, for its bene- 
fits are conferred upon every individual in the State, rich 
or poor, high or low, who has a claim of the character 
described. It is not a statute for the protection of par- 
ticular classes of individuals supposed to need protection, 
but for the punishment of certain corporations on ac- 
count of their delinquency. 

"Neither can it be sustained as a proper means of 
enforcing the payment of small debts and preventing any 
unnecessary litigation in respect to them, because it 
does not impose the penalty in all cases where the amount 
in controversy is within the limit named in the statute. 
Indeed, the statute arbitrarily singles out one class of 
debtors and punishes it for a failure to preform certain 



198 THE COURTS. 

duties — duties which are equally obligatory upon all 
debtors; a punishment not visited by reason of the fail- 
ure to comply with any proper police regulations or 
for the protection of the laboring classes or to prevent 
litigation about trifling matters, or in consequence of 
any special corporate privileges bestowed by the State. 
Unless the legislature may arbitrarily select one cor- 
poration or one class of corporations, one individual 
or one class of individuals, and visit a penalty upon them 
which is not imposed upon others guilty of like delin- 
quency, this statute cannot be sustained. 

"But arbitrary selection can never be justified by call- 
ing it classification. The equal protection demanded 
by the Fourteenth Amendment forbids this." 

Sec. 60. The question under consideration in its appli- 
cation to persons other than citizens was extensively 
discussed by the United States Supreme Court in the 
Chinese laundry cases. The court has instructed Mr. 
Justice Mathews to say that the Fourteenth Amendment 
to the Constitution is not confined to the protection of 
citizens. It says: "Nor shall any State deprive any 
person of life, liberty, or property without due process 
of law; nor deny to any person within its jurisdiction 
the equal protection of the law." These provisions are 
universal in their application to all persons within the 
territorial jurisdiction, without regard to any differ- 



THE COURTS. 199 

ence of race, of color, or of nationality; and the equal 
protection of the laws is a pledge of the protection of 
equal laws. It is accordingly enacted by section 1977 
of the Revised Statutes that "all persons within the 
jurisdiction of the United States shall have the same 
right in every State and Territory to make and enforce 
contracts, to sue, be parties, give evidence, and to the 
full and equal benefit of all laws and proceedings for 
the security of persons and property as is enjoyed by 
white citizens and shall be subject to like punishment, 
pains, penalties, taxes, licenses, and exactions of every 
kind, and to no other." The questions the Court had 
to consider and decide in the Chinese cases, therefore, 
are to be treated as involving the rights of every citizen 
of the United States with those of the strangers and 
aliens who now invoke the jurisdiction of the court. 

It was contended on the part of the petitioners that 
the ordinances for violations of which they are severally 
sentenced to imprisonment are void on their face, as be- 
ing within the prohibitions of the Fourteenth Amend- 
ment; and in the alternative, if not so, that they 
are void by reason of their administration, operating un- 
equally, so as to punish in the present petitioners what 
is permitted to others as lawful, without any distinc- 
tion of circumstances — an unjust and illegal discrimi- 



200 THE COURTS. 

nation, it is claimed, which, though not made expressly 
by the ordinances, is made possible by them. 

When we consider the nature and the theory of the 
American institutions of government, the principals upon 
which they are supposed to rest, and review the history 
of their development, we are constrained to conclude 
that they do not mean to leave room for the play and 
action of purely personal and arbritrary power. Sov- 
ereignty itself is, of course, not subject to law, for it is 
the author and source of law; but in the American 
system, while sovereign powers are deligated to the 
agencies of government, sovereignty itself remains with 
the people, by whom and for whom all government exists 
and acts. And the law is the definition and limitation 
of power. It is, indeed, quite true, that there must 
always be lodged somewhere, and in some person or body, 
the authority of final decision; and in many cases of 
mere administration the responsibility is purely political, 
no appeal lying except to the ultimate tribunal of the 
public judgment, exercised either in the pressure of 
opinion or by means of the suffrage. But the funda- 
mental rights to life, liberty, and the pursuit of happiness, 
considered as individual possessions, are secured by those 
maxims of constitutional law which are the monuments 
showing the victorious progress of the race in securing 
to men the blessings of civilization under the reign of 



THE COURTS. 201 

just and equal laws, so that, in the famous language of 
the Massachusetts Bill of Rights, the government of the 
Commonwealth "may be a government of laws and not 
of men." For the very idea that one man may be 
compelled to hold his life, or the means of living, or any 
material right essential to the enjoyment of life, at the 
mere will of another, seems to be intolerable in any 
country where freedom prevails, as being the essence of 
slavery itself.^ 

However, let us understand that the Fourteenth 
Amendment to the Constitution of the United States 
does not prohibit legislation which is limited either in 
the objects to which it is directed, or by the territory 
within which it is to operate. It merely requires that all 
persons subjected to such legislation shall be treated 
alike, under like circumstances and conditions, both in 
privileges conferred and in the liabilities imposed.^ 

The inhibition of the Fourteenth Amendment that 
no State shall deprive any person within its jurisdiction 
of the equal protection of the laws was designed to pre- 
vent any person or class of persons from being singled 
out as a special subject for discriminating and hostile 
legislation. Under the designation of "person" there 
is no doubt that a private corporation is included. Such 

"■ Wick Wo. V. Hopkins, ii8 U. S. 356. 
^ Hayes v. Missouri, 120 U. S. 68. 



202 THE COURTS. 

corporations are merely associations of individuals united 
for a special purpose, and permitted to do business under 
a particular name, and have a succession of members 
without dissolution. As said Chief Justice Marshall, 
"The great object of a corporation is to bestow the char- 
acter and properties of individuality on a collective and 
changing body of men." ' The equal protection of the 
laws which these bodies may claim is only such as is ac- 
corded to similar associations within the jurisdiction of 
the State. Mr. Justice Field had an occasion to say that 
"the plaintiff in error is not a corporation within the ju- 
risdiction of Pennsylvania. The office it hires is within 
such jurisdiction, and on condition that it pays the re- 
quired license tax, it can claim the same protection in the 
use of the office that any other corporation having a simi- 
lar office may claim. It would then have the equal protec- 
tion of the law so far as it had anything within the juris- 
diction of the State, and the constitutional amendment re- 
quires nothing more. The State is not prohibited from 
discriminating in the privilege it may grant to foreign 
corporations as a condition of their doing business or hir- 
ing offices within its limits, provided always such dis- 
crimination does not interfere with any transaction by 
such corporations of interstate or foreign commerce. It 
is not every corporation, lawful in the state of its creation, 

* Providence Bank v. Billings, 4 Pet. 514, 562. 



THE COURTS. 203 

that Other States may be willing to admit within their ju- 
risdiction or consent that it have offices in them ; such, for 
example, as a corporation for lotteries. And even where 
the business of a foreign corporation is not unlawful in 
other States the latter may wish to limit the number of 
such corporations, or to subject their business to such 
control as would be in accordance with the policy govern- 
ing domestic corporations of a similar character. The 
States may, therefore, require for the admission within 
their limits of the corporations of other States, or of any 
number of them, such conditions as they may choose, 
without acting in conflict with the concluding provision 
of the first section of the Fourteenth Amendment." * 

In this connection, let us see whether, since the 
adoption of the Fourteenth Amendment, a woman who is 
a citizen of the United States and of one of the States of 
the United States, is a voter in that State, which con- 
fined the right of suffrage to men alone. 

The Fourteenth Amendment did not add to the privi- 
leges and immunities of a citizen. It simply furnished an 
additional guaranty for the protection of such as he al- 
ready had. No new voters were necessarily made by it. 
Indirectly it may have that effect, because it may have 
increased the number of citizens entitled to suffrage under 
the Constitution and laws of the State, but it operates for 
* Pembina Mining Co. v. Pennsylvania, 125 U. S. 181. 



204 THE COURTS. 

this purpose, if at all, through the States and the State 
laws, and not directly upon the citizen. 

It is clear, therefore, we think, that the Constitution 
has not added the right of suffrage to the privileges and 
immunities of citizenship as they existed at the time it 
was adopted. This makes it proper to inquire whether 
suffrage was co-extensive with the citizenship of the 
States at the time of its adoption. If it was, then it may 
with force be argued that suffrage was one of the rights 
which belonged to citizenship, and in the enjoyment of 
which every citizen must be protected. But if it was not, 
the contrary may with propriety be assumed. 

It is true that the United States guarantees to every 
State a republican form of government (Constitution, 
Article IV, p. 4). It is also true that no State can pass 
a bill of attainder (Article I, p. 10), and that no person 
can be deprived of life, liberty, or property without due 
process of law (ib. Amendment 5). All these several 
provisions of the Constitution must be construed in con- 
nection with the other parts of the instrument, and in the 
light of the surrounding circumstances. 

The guaranty is of a republican form of government. 
No particular government is designated as republican, 
neither is the exact form to be guaranteed in any manner 
especially designated. Here, as in other forms of the in- 



THE COURTS. 205 

strument, we are compelled to resort elsewhere to ascer- 
tain what was intended. 

The guaranty necessarily irnplies a duty on the part of 
the States themselves to provide such a government. All 
the States had governments when the Constitution was 
adopted. In all the people participated to some extent 
through their representatives elected in the manner 
specially provided. These governments the Constitution 
did not change. They were accepted precisely as they 
were, and it is, therefore, to be presumed that they were 
such as it was the duty of the States to provide. Thus 
we have unmistakable evidence of what was republican 
in form, within the meaning of that term as employed in 
the Constitution. 

As has been seen, all the citizens of the United States 
were not invested with the right of suffrage. In all, save 
perhaps New Jersey, this right was only bestowed upon 
men and not upon all of them. Under these circum- 
stances it is certainly now too late to contend that a 
government is not republican, within the meaning of this 
guaranty in the Constitution, because women are not 
made voters. 

Besides this, citizenship has not in all cases been made 
a condition precedent to the enjoyment of the right of 
suffrage. Thus, in Missouri, persons of foreign birth, 
who have declared their intention to become citizens of 



206 THE COURTS. 

the United States, may under certain circumstances vote. 
The same provision is to be found in the Constitutions of 
Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, 
Minnesota and Texas. 

Certainly if the courts can consider any question set- 
tled, this is one. For nearly ninety years the people have 
acted upon the idea that the Constitution, when it con- 
ferred citizenship, did not necessarily confer the right 
of suffrage. If uniform practice long continued can set- 
tle the construction of so important an instrument as the 
Constitution of the United States confessedly is, most 
certainly it has been done here. The province of the 
courts is to decide what the law is, not to declare what 
it should be.^ 

And at last, the legislative, executive, and judicial 
powers are co-extensive with each other. They 
are equal in dignity and of co-ordinate authority. Neith- 
er can subject the other to its jurisdiction, or strip it of 
any portion of its constitutional powers. It is, therefore, 
very proper that the judiciary, in passing upon questions 
of law which have been considered and acted upon by 
the other departments of government, should give great 
weight to their opinions, especially if they have passed 
unchallenged for considerable period. The judiciary have 
often yielded to it when the correctness of a practical con- 
^ Minor v. Happersett, 21 Wallace 162. 



THE COURTS. 2O7 

struction of the law by the other departments, in the per- 
formance of their own duties, was in question. Never- 
theless, they can not do this when, in the opinion of the 
court, the construction is plainly a violation of the Con- 
stitution. 

As President Roosevelt said at the gathering of the 
members of the Washington Bar: "It is sometimes a 
good thing to be heard first. It is always a good thing 
to have the right to speak last. That right belongs to 
the Supreme Court. The President and Congress are all 
very well in their way. They can say what they think, 
but it rests with the Supreme Court to decide what they 
have really thought." 

In theory and practice the American judiciary is the 
final authority in the construction of the Constitution and 
the laws, and its construction should be received and fol- 
lowed by the other departments. 



APPENDIX I 



APPENDIX I 



Before the Promulgation of the 
Constitution 



Among the most notable constitutions of the ancients 
were those of the Grecian Republics — one set framed by 
the Amphictyonic Counsel, the other by the Achean 
League. The first provided that the council should have 
authority to propose and to do whatever was necessary 
for the general good of Greece; to declare and carry on 
war, or to bring it to a close; to decide, as a court of 
last resort, all controversies arising between its members ; 
it was empowered to direct the whole force of the Grecian 
confederation against the rebellious. Power besides was 
given them to admit new members. It must be acknowl- 
edged that the Greek constitution was sufficient for gen- 
eral purposes and for the maintenance and enforcement 
of the laws, but the age in which it was framed was an 
idolatrous one. Superstition colored their meaning and 
warped the construction of the constitution. Its influence 



211 



212 BEFORE THE PROMULGATION 

permeated society, jealousies and strife were fomented, 
and hatred and fear awakened among the people. These 
culminated at last in the Peloponessian War, and the ruin 
and enslavement of the Athenians who had begun it. 
The constitution of the Achean League tended to a closer 
union of the republics than did that of the Amphictyonic 
Council. Its effects were more wide reaching. Under 
it the Senate, composed of the entire membership of the 
League, had power to declare war and make peace; to 
send out or to receive ambassadors; to form alliances or 
to make treaties; and to appoint the commander in chief 
of all the armies, who was commonly called Praetor. At 
one time all Greece seemed ready to unite in one grand 
confederation. But one of its members, which had grown 
stronger and richer than the rest, became its master. 
The smaller and less important states became jealous 
and suspicious, and while Sparta and Athens, the two 
most powerful, were fast becoming a hindrance to the 
confederation, the lesser states invoked the aid of for- 
eign powers who were their powerful neighbors. These, 
Egypt, Syria, Macedonia, and Rome, were glad to avail 
themselves of the invitation to aid in the defence of the 
weak and the suppression of the strong and it became 
their pleasing duty, because of the aid lent, to awaken 
fresh strifes among them, which resulted in further com- 
plications, conflicts, and disorders within and without 



OF THE CONSTITUTION. 213 

the confederation and dispelled the last hope of Greece 
for ancient liberty. Under the walls of Corinth, the 
Achea, the seat of the federal government, was taken 
and burned to the ground by Mammins the Roman gen- 
eral. Thus the political existence of Greece was brought 
to an end. Her arts, the drama, music, poetry, litera- 
ture, her sciences, her philosophy, her paganism, her 
superstitions with her luxury and dissipation were all 
transferred to Rome, whose physical power has subdued 
her, but over whom she held the mastery of mind, for 
her great teachers Thales, Pithagoras, Socrates, Plato, 
Demosthenes, and a host of other great Greeks taught 
their conquerors. 

Perhaps the people who figured most conspicuously 
upon the arena of the ancient and mediaeval world were 
Romans, for Rome opposed her constraint and prosaic 
intelligence to the freedom and independence of the 
Greeks. Roman character was expressed in her religion. 
The word religion means obligation, a binding power, 
and their worship was a business-like performance. Duty 
was a Roman watchword, a law for each, a copy of the 
will of heaven. The end for which the Roman was 
born seems to have been to stamp upon the mind of man- 
kind the idea of Law, Government, and Order. 

The great Roman poet, Virgil, knew what the Ro- 
mans' life work was when he sang : 



214 BEFORE THE PROMULGATION 

"Other, belike, with happier grace, 

From bronze or stone shall call the face, 

Plead doubtful cause, map the skies. 

And tell when planets set or rise ; 

But, Roman, thou — do thou control 

The Nation far and wide; 

Be this thy genius, to impose 

The rule of peace on vanished foes. 

Show pity to the humbled soul. 

And crush the sons of pride." 

Truly the Romans framed a most perfect constitu- 
tion. Bryce says that the facility with which the Roman 
jurists pass from the universal to the particular and from 
the particular to the universal is uncontestable and mas- 
terly. 

"No matter now whether Rome perished as a state or 
not, Roman law was strong enough to survive Rome," 
says Sohm ; according to Kent, " the Roman law is taught 
and obeyed not only in France, Spain, Germany, Hol- 
land, and Scotland, but in the islands of the Indian Ocean, 
and on the banks of the Mississippi and the St. Law- 
rence." So true, it seems, are the words of D'Agues- 
sean that the grand destinies of Rome are not as yet 
accomplished; for she reigns throughout the world by 
her reason, after having ceased to reign by her author- 
ity. To these the writer would add that the new member 
of the civilized world of the nineteenth century, the consti- 
tutional state, Japan, is a debtor to the Roman Law in 
no less degree than were the nations enumerated above. 



OF THE CONSTITUTION. 21$ 

But, in reality, what has become of the political existence 
of Rome for which the venerable constitution was 
formed ? 

Rome lacked a middle class, unity of the great de- 
pendencies, lacked the principle of succession in the im- 
perial office, lacked the machinery which the complexity 
of situation made necessary, lacked a favorable site for 
her capital city, lacked a popular participation in legis- 
lation, lacked proper control of the judiciary, lacked the 
elective in kingship, lacked in the commutatus, lacked in 
incorporation and legislation, and above all, Rome had 
not a Supreme Court of the United States to construe 
the unwritten understanding of the constitution and 
lacked the ability to apply the principles of the corpus 
juries to the ever expanding nation. 

The question now to be settled is this: Who shall in- 
herit the civilization which was received from Greece, 
and what shall be the fate of laws and institutions which 
had existed and grown up within Rome. In the early 
age of Christianity the civilization of mediaeval Europe 
was predestined to include the great Teutonic elements, 
which has imparted to it so much of its peculiar power 
and grandeur. The Teutonic tribes who appeared upon 
the scene when a crisis in the history of the world had 
come and when the race of Rome was run, preserved 
their ancient remains through the reign of Charlemagne 



2l6 BEFORE THE PROMULGATION 

and the establishment of feudaHsm, all the way down 
to the peace of Westphalia, 

The Teutonic influence is the dominant principle in 
the four great Christian kingdoms, Germany, Spain, 
France and England. The smaller states shared more 
or less in the same general characteristics. The great 
and small states alike seem to have followed with few 
variations, translating the Teutonic principles into their 
own language. "If English history is not the perfectly 
pure development of Teutonic principles, it is the near- 
est existing approach to such a development." The 
elements that were not Teutonic could not break the 
tough metal, but melted like snow before the sun in 
England. It is due to that burning character that 
King John was forced to grant the Magna Charta, A. D. 
12 1 5, the most important provision of which was, that 
"no freemen shall be taken or imprisoned or disseized 
or outlawed or banished or anyways destroyed, nor will 
the king pass upon him or commit him to prison, unless 
by the judgment of his peers or the law of the land." 
Founded upon the charter the fabric of constitutional 
liberty of an Englishman was slowly but surely erected. 
The King, Henry III, was soon obliged to establish Par- 
liament in A. D. 1264; and in the beginning of the reign 
of Charles I he received further assurance in "The 
Petition of Right" of 1628, that "no man be compelled 



OF THE CONSTITUTION. 21/ 

to make or yield any gift, loan, benevolence, tax, or such 
like charge, without common consent by Act of Parlia- 
ment; that none be called upon to make answer for re- 
fusal so to do; that a freeman be imprisoned or dis- 
seized only by the law of the land, or by due process 
of law, and not by the king's special command without 
any charge." An Englishman has followed up in the 
next reign and secured the right under the Habeas 
Corpus Act to receive "speedy relief from all unlawful 
imprisonment and to enforce upon judicial and other 
officers the duty of deliverance." The liberty loving people 
were not contented with those that have been received 
already. In 1688, he insisted and gained the "enumer- 
ation and reaffimation of such right of the English- 
man," through what is called the Bill of Rights. These 
charters, he has made use of as the principles or instru- 
mentalities in extending and broadening of his right in 
the still greater Charter of the English Common law. 

The middle age in England was that age in which 
the Teutonic elements were absorbing the foreign ele- 
ments, and the love of personal liberty and the sense of 
independence, virtues of the Teutons, were working out 
in the crucible of experience in the Hellenic-Roman 
civilization. In a juster view, it was the germinating 
season; the seeds of modern England cast into the soil 
were quickening into new institutions and a new nation- 



2l8 BEFORE THE PROMULGATION 

ality — the Englishman. "Language, law, custom and 
religion preserve their original conformation and color- 
ing. The German element is the paternal element in 
.'the English system, natural and political. Analogy, 
however is not proof, but illustration; the chain of 
proof is not to be found in the progressive, persistent de- 
velopment of English constitutional history from the pri- 
meval polity of the common fatherland." 

When the curtain goes up on modern history, we have 
disclosed to view the revolt of the Teutonic spirit known 
as the Reformation — the banner of the free spirit face 
to face with its creator, determined to have truth found, 
and right done, without regard to human tradition, 
authority, intervention or privilege. The spirit of in- 
quiry, set free, was changing and blessing the whole 
world. To this we owe in modern literature some of 
the noblest creations of the human intellect. To this 
are due the discoveries of science, which have made life 
longer, easier and brighter. Hence have come in every 
land the triumphs of truth and genius over prejudice 
and power. This it is which has discovered the Ameri- 
can continent, has revealed the secrets of Central Africa, 
and the isles of the Pacific, has diminished distance by 
steam and destroyed it by electricity, and last and best, 
has created the greatest of modern republics, and has 
filled the colonial world with flourishing, self-governing 



OF THE CONSTITUTION. 219 

people, who have no crown or sovereign but the flag, 
the emblem of dignity, power and authority, which has 
prepared and is preparing the reign of universal peace. 

Exploring the New World and colonial development 
therein were shared by the large as well as the small 
states, Spain, Portugal, England, Dutch Republic, Swe- 
den, France, Poland, and Germany. The account of 
the failure or triumph of these countries in the explor- 
ations and colonization is not our aim. The view 
should be narrowed down as much as possible into the 
peculiar character of the Teutonic exploration and colo- 
nization, which in the dark age was predestined to ripen 
and bloom freely in the founding of the greatest of re- 
publics, as an illustrative example to the student of 
modern history of an interesting contrast to the most 
progressive and most spoiled nations of Greece and 
Rome. 

In so far as the exploration of the sea is concerned, 
nearly all of ancient history in Europe as it has come 
down to us deals with peoples about the Mediterranean. 
When hardy sailors crept along the shore through the 
Strait of Gibraltar and thence to Britain, it was deemed 
a wonderful achievement and after this nothing of im- 
portance was discovered by sea from the days of Julius 
Caesar to the fifteenth century. It is difficult to separate 
truth from fiction in the account of the settlement in 



220 BEFORE THE PROMULGATION 

New England before looo A. D., of Norsemen coming 
from Iceland and Greenland; but the account of the 
warriors of Taira Clan, who, after the decisive battle 
of Danno-ura, fled to the American continent and settled 
there before 1200 A. D., is more easily understood, as 
it was natural that they should follow the Japanese cur- 
rent which flows past the Pacific coast and warms the 
shore of California. 

However, to trace the Teutonic achievement in the 
colonization of America — a Genoese sailor and a Span- 
ish queen made the first discovery and were followed 
by John Cabot and his son, Sebastian, the Italian sailors 
under English commission. The former landed in 1492 
at Hayti and from there went later to Havana, the latter 
in A. D. 1497, landed on the North American coast, but 
as to whether they had any idea that they had discovered 
the new world is extremely doubtful. Next in point of 
time, that is in 1498, came a man from Florence, Italy, 
whose name and writing sound the sweetest of all which 
has lasted to the present time — "Americus" and the 
" New World." The colonization of first significance 
made by France was in 1604. The French explorers 
settled in Port Royal, Nova Scotia and founded Quebec. 
They sailed up the Great Lakes and down the Missis- 
sippi. In a comparatively short time the French ex- 
plored the whole of the immense Mississippi basin 



OF THE CONSTITUTION 221 

between the Rocky Mountains and the Appalachian chain 
as far down as Lower Canada. The Spanish and the 
Portuguese are the pioneers in the armed campaigns. The 
Spanish claimed Mexico and Peru, invaded Florida and 
established a permanent settlement at St. Augustine in 
1565. It is to be noted that the Spanish, the Portuguese 
and the French did most of the work of discovery and 
exploration by land and sea, and the English did prac- 
tically no work; but in colonizing they outstripped all 
competitors. 

The English were as anxious for gold and other pre- 
cious things of the earth as the Spaniards, but as they 
could not see gold in sand dunes, they went at the sub- 
ject in a more profitable way and stole negroes from 
Africa to sell to the Spanish in America for gold. When 
war broke out between Spain and England, Phillip II 
sent in 1588 his " invincible Armada," only to have it 
scattered to the winds or sent to the bottom of the sea 
by Drake and Howard, so that the English, capturing 
Spanish galleons got their share of gold with very little 
work, besides adding new laurels to the crown of the 
Virgin Queen, who now set up a claim to most of North 
America. Permanent English settlement was effected 
by corporations known as the London and Plymouth 
Companies. The charter of these companies gave to 
the colonists all the political and civil rights and privi- 



222 BEFORE THE PROMULGATION 

leges of Englishmen. The London Company was to 
have the southern part of the country, the Plymouth 
Company the northern part, while the middle ground, 
from the present city of New York to the mouth of 
the Potomac was to be open to both. The London Com- 
pany's first expedition was composed of about one hun- 
dred persons, who laid out a village in 1607 and called 
it Jamestown. Two years later, five hundred more colo- 
nists came out, and twelve years after the first settle- 
ment there were found four thousand white persons in 
Virginia, besides a considerable number of negro slaves. 
In 1 6 19, the colonists were divided into eleven settle- 
ments, which were known as boroughs and it was neces- 
sary that some form of government be devised for the 
colonies as a whole and for defining the relations of the 
boroughs to each other. If the settlers had been Span- 
iards or Frenchmen or Italians, no initiative would have 
been taken. In the dividing, the settlements began an 
instinctive movement toward regulation of public af- 
fairs of the American colonists, which peculiarity the 
Teutonic family had back in the barbaric days in the 
European forests. " It is the characteristic of the Teu- 
tonic race and those who have assimilated with it, to 
take strong ground on private rights, but acknowledge 
duty to others." In dividing the settlements the first 
American government was brought into being. The 



OF THE CONSTITUTION. 223 

enterprise of the London Company was so successful 
in the colonizing effort that for sixty-five years there 
were upward of 40,000 self-supporting white people in 
Virginia. 

In those days, the frequent changes in the throne of 
England led to religious difficulties. Henry VIII modi- 
fied Romanism and set up the Established Church, but 
when Mary succeeded the youthful Edward VI, Cathol- 
icism was restored and later Elizabeth restored the 
Church of Henry VIII. All these changes became the 
cause of the great movement known as Puritanism. 
This movement, as did Methodism at a later date, began 
within the church. James was a Presbyterian, but he 
was not true to the church in practice, and Charles be- 
lieved in the ritualism of the Established Church but 
his belief was changeable and was always dependent 
upon his perogatives. In consequence, the independent 
movement started, and ended in the separation of it 
from the Established Church, much as Luther and his 
followers had left the Roman Catholic Church. The 
Pilgrims fled to Holland, thence to America on board 
the ship Mayflower of the Plymouth Company. They 
sailed from the Dutch town of Leydon on the i6th 
of September and reached America on the 21st of 
November. The landing on the " rock " was made De- 
cember 21, 1620; the place was named Plymouth. It 



224 BEFORE THE PROMULGATION 

was a bitter cold winter, and more than half of the Pil- 
grims died before spring. Here again the Pilgrim 
fathers revealed the characteristic earnestness, thrift and 
consciousness that changed the appearance of things 
as unpromising as one could imagine. The good harvest 
of the first year was celebrated by the institution of the 
now National festival of Thanksgiving. The Pilgrims 
struggled long and hard for a bare existence, while the 
Virginians soon grew rich; the Virginians raised to- 
bacco and the Pilgrims raised men, which was about all 
the soil could support. Next came to America the 
Puritans, who believed in the infallibility of their re- 
ligion as sincerely as the Catholics did in theirs. They 
came from their home to exploit their own religious 
idea. Charles I gave them a charter, and first colonists 
were sent over in 1628, and founded the settlement of 
Massachusetts Bay; two years later John Winthrop 
came over with about one thousand persons and settled 
in the neighborhood of the present city of Boston. In 
the next ten years some 20,000 more came. Here the 
first voice was raised for the separation of the church 
and state, whereupon the clergyman, Roger Williams, 
was met by the King's wrath and ordered home for 
punishment; but he and his followers instead of obeying 
the order, set off through the woods and established a 
town which was called Providence, in the present State 



OF THE CONSTITUTION. 22$ 

of Rhode Island. A new colony was founded near 
Portsmouth, New Hampshire, by John Mason and on 
the Maine coast by Sir Ferdinando Gorges, both of 
whom were the King's friends; and in 1679 Charles II 
made of these a new royal colony called New Hamp- 
shire. In 1638, a new colony under the leadership of 
the Reverend John Davenport came from England and 
formed the New Haven colony. The latest sect that 
came to Massachusetts was that of Quakers or Friends, 
the mildest people in Christendom, only to conflict with 
the Masaschusetts religious views; but this they avoided 
by removing into Rhode Island in 1659. Carolina, 
named in honor of Charles II, had first been settled by 
the Huguenots, whom the Spanish massacred, and in 
1663, Charles granted a charter whereby a settlement 
was made, the leading one being Charleston. 

It is worth noting that we owe to the Dutch some of 
the first important settlements in America. Hendrick 
Hudson was one of the most daring explorers of the 
period. To find a route to India, he started in 1609, 
and had discovered the bay, which bears his name to 
this day. The Dutch settled in the country, the center 
being Albany. They were great traders and soon opened 
a route with the Indians for furs. The Swedes, also, 
formed a settlement on the Delaware, where Wilming- 
ton now stands, and were for a time prosperous. But 



2.2(i BEFORE THE PROMULGATION 

in 1655 Peter Stuyvesant came from New Amsterdam, 
now New York, and beseiged the Swedes, claiming all 
the land under Hudson's discoveries, and as a result, the 
empire of New Sweden fell. The thrifty Dutch soon 
grew prosperous only to arouse the jealousies of the 
English, who suddenly remembered that Cabot had dis- 
covered the continent of North America, and who soon 
sent a fleet in 1664, which conquered the Dutch. Their 
territory was given to the King's brother, the Duke of 
York, and named in his honor. New York. James 
gave what is now New Jersey to a couple of his friends. 
Lord Berkeley and Sir George Carteret. With regard 
to the colony of Maryland: it was first founded by 
the refugees of the Catholics in England, who were de- 
nied civil rights and persecuted for their religion and 
who founded this prosperous State in 1636, with the re- 
ligion tolerated under Lord Baltimore. William Penn, 
the son of an English admiral, to whom the crown owed 
money, concluded to make a settlement in America, and 
proposed to settle the bill for a grant of land in America. 
The result was the grant of all the country north of 
Maryland, west of the Jerseys, and south of New York, 
as the State of Pennsylvania stands today. The last set- 
tlement was made in 1732 when George II granted a 
charter to James Oglethorpe, for which the colony was 
named in the King's honor. Briefly this is the founda- 



OF THE CONSTITUTION. 22/ 

tion of the English colonies in America. From the ac- 
cession of William and Mary to that of George III the 
American colonies throve and emigration poured in 
from many parts of Europe. The Germans swarmed 
into Pennsylvania. There were Scotch and Irish in 
southern Pennsylvania and Virginia, who were pushed 
back into the mountains, where their descendents in 
West Virginia and Kentucky today keep up family feuds 
made memorable in song and story. The Huguenots 
went to the Carolinas. The wave of immigration has 
crossed the Appalachian Chain, the Rocky Mountains 
and the Sierra Nevada. Meantime, the colonies were 
gaining a good deal of their population by the redemp- 
tion system; the redemptioners, who were largely 
Germans, soon became not only valued citizens, but were 
also found useful as artillerymen when General Washing- 
ton needed them. Thirteen American colonies of Great 
Britain occupied all the country from St. Croix River to 
the Florida line, and from the Atlantic to the Mississippi 
south of the St. Lawrence and the Great Lakes. There 
were in 1760 some 1,600,000 persons, including about 
400,000 slaves, and in 1770 the population had increased 
to double this figure in round numbers. 

Thus stood the colonists in 1770, prosperous, vir- 
tuous, industrious and loyal to the crown. We shall get 
an entirely erroneous idea of the fathers of the revolu- 



228 BEFORE THE PROMULGATION 

tionary movement now approaching in the colonies, if 
we do not look at the condition of politics in England; 
for the love of country is inherent in Englishmen. After 
the expulsion of the Stuarts, England was ruled mostly 
by foreigners for seventy odd years. William III was 
a Dutchman. Mary was an Englishwoman, but wife of 
William. Anne was an Englishwoman, but she was 
ruled by her ministers. George I and George II were 
foreigners who could scarcely speak English. Parlia- 
ment had then reached a commanding position in 
England. In 1760, only about one-tenth of the adult 
males voted for the members of the lower House of 
Parliament, and seats were distributed as they had been 
two centuries before. The members were largely friends 
and henchmen of the nobility, and great county families 
who owned seats and distributed them as they chose. 
Under such circumstances it can be seen that it was 
easy to use corrupt methods and influence to control 
elections. In Great Britain for many years there was 
constant trouble between a bigoted minister and a dog- 
ged and occasionally half insane King. The revolution 
that came with the colonies benefitted England, as one 
result was the gradual growth of reform. 

Parliament was now in control of colonial legislation, 
and enacted laws regulating trade, which were designed 
to make the colonies do all their buying and selling in 



OF THE CONSTITUTION. 229 

England. But the colonies ignored all the regulations. 
Parliament was busy with other matters, so that the 
colonies were let alone for a time. In 1760 George III 
came to the throne, and George Granville into office in 
1763, when the situation of the colonies became very- 
different. Granville was an industrious man, who was 
by no means pleased to learn that many of the laws 
concerning trade were ignored and evaded. He had no 
malice toward the colonists, but he erred in the remedy 
he proposed. The Stamp Act was passed in 1765, mak- 
ing it necessary to use stamped paper for many purposes. 
The Englishman has hated nothing so much as taxation. 
This should be remembered in all his history. The colo- 
nists were Englishmen, and reasonably claimed all the 
rights, privileges and immunities of Englishmen, and 
objected vigorously to the exercise of the taxing power 
in a body which in no sense represented them. On No- 
vember 7, 1765, the Stamp Act Congress, composed of 
the delegates, from the colonies, met in New York. A 
protest against the Act was passed, with petitions to the 
King and Parliament. The victory of Pitt in securing 
a repeal of the Stamp Act soon followed, but that vic- 
tory was a barren one, for Parliament passed three acts 
in 1767, one of which laid direct taxes on all tea, glass, 
paper, paints and some other articles imported to the 
colonies, and which were, therefore, more objectionable 



230 BEFORE THE PROMULGATION 

than the Stamp Act. One can hardly understand the 
stupidity of the men who concocted this act. It was 
simply another method of asserting the right to tax 
the colonists by ostensibly giving them a bribe to accept 
this principle. Such a plan in another part of the world 
might not have met with so much disfavor, but in the 
New World, where the Teutonic family of nations 
formed the government, it was a " pin prick " policy. 

Not stopping to glance over the scientific system of 
the colonists in smuggling tea, not arguing against the 
crown officers searching anywhere they pleased for the 
alleged smuggled goods and invading the cherished be- 
lief of the Englishman that his house is his castle, and 
also not attracting our attention to the Quebec Act in 
its relation to Canadians, let us pass over to the more 
important event which took place in Philadelphia Sep- 
tember 5, 1774, where the First Continental Congress 
met to consider how to assist the Englishman in the 
exercise of his legal rights. A petition was drawn up 
to the King, in which loyalty was professed and in 
which the repeal of the obnoxious acts were requested. 
The complaints were principally directed to four points: 
(i) imposing taxes without the consent of the 
people's representative, (2) keeping up standing armies 
in time of peace to overawe the people, (3) denying the 
right to trial by jury of the vicinage in some cases, and 



OF THE CONSTITUTION. 23 1 

providing for a transportation of persons accused of 
crimes in America for trial in Great Britain, (4) expos- 
ing the premises of the people to searches, and their 
persons, papers, and property to seizures on general 
warrants. If this had been all, American history might 
have been different, but the Congress resolved that in 
case the repressive legislation was enforced, all America 
should resist it by force. It was this that hardened the 
heart of George III and his ministers, who subsequently 
ordered the British army and officers to keep the colo- 
nists from preparing for a conflict. 

Learning that the colonists had established a depot 
of supplies at Concord, some twenty miles from Boston, 
on April 18, 1775, General Gage sent about eight hun- 
dred men under Major Pitcairn to destroy the stores 
and incidentally picked up John Hancock and Samuel 
Adams at Lexington on the way home. The two latter 
were to be sent to England for trial on a charge of 
treason, but long before the troops were under way the 
colonists were preparing to receive them. The first en- 
counter was on Lexington Green, where a few Minute 
men had hastily gathered. Seven colonists fell dead. It 
is not known by whom the order to fire was given, but 
this was the " shot heard round the world." The news 
spread like wildfire. Though there had been no dec- 
laration of war, yet everyone saw the struggle was on. 



232 BEFORE THE PROMULGATION 

Without discussing independence or any other issue, 
Congress elected George Washington, of Virginia, Com- 
mander-in-chief ; while the King's answer to the petition 
of the ^colonists was war. 

The war actually began on April 18, 1775. It was 
intensified by American fire that drove the English as- 
saulting column down the Bunker Hill on July i6th. 
When Howe evacuated Boston, March 17, 1776, and 
when Washington marched his army to Brooklyn, Long 
Island, the question of Independence had come to agitate 
Congress. And finally the declaration, which was drawn 
up by Thomas Jefferson, of Virginia, and revised by 
Benjamin Franklin, John Adams, Roger Sherman and 
Robert R. Livingston was adopted July 4, 1776, in the 
State House. 

In the declaration, as had been actuated by " a decent 
respect for the opinion of mankind," alleged against 
the King and Parliament the famous eighteen accusa- 
tions. The colonies gave prominence to the declaration 
in the following solemn and impressive decree: 

" We, therefore, the Representatives of the United 
States of America, in General Congress assembled, ap- 
pealing to the Supreme Judge of the World for the 
rectitude of our intentions, do, in the name and by the 
authority of the good people of these Colonies, solemnly 
publish and declare that these United Colonies are, and 



OF THE CONSTITUTION. 233 

of right ought to be, free and independent States; that 
they are absolved from all allegiance to the British 
crown, and that all political connection between them 
and the State of Great Britain is, and ought to be, totally- 
dissolved; and that as free and independent States, they 
have full power to levy war, conclude peace, contract 
alliances, establish commerce, and do all other acts and 
things which independent States may of right do. And 
for the support of this Declaration, with a firm reliance 
on the protection of Divine Providence, we mutually 
pledge to each other our lives, our fortunes, and our 
secret honor." 

Meantime the war was brough to a decisive campaign 
when Washington besieged Cornwallis, and by the sur- 
render of the latter on October 19, 1781, the war was 
practically over; yes, actually, it was ended by Wash- 
ington's disbandment of the army on April 19, 1783, 
eight years from the day the Minute men gathered on 
Lexington Green. The treaty of peace was agreed to 
by the American peace commissioners, Benjamin Frank- 
lin, John Jay and John Adams on November 30, 1782, 
and was finally concluded September 3, 1783. 

Peace hath her troubles no less than war. When the 
was was over the States drifted back into their old ways 
before the war. Each had its own laws. Strong 
jealousies and rivalries existed, which manifested them- 



234 BEFORE THE PROMULGATION 

selves in legislation. Each State had its own tariff law, 
and discriminated against its neighbors. Each State was 
in debt for the war. Congress was in debt for the loans 
it had made abroad, and borrowed money to pay the 
interest. The old self -constituted Continental Congress 
had been succeeded by the Congress formed under the 
Articles of Confederation. It seems paradoxical, but the 
States under the Articles of Confederation were in many 
respects less satisfactory than before the war began. If 
the Articles of Confederation had been stronger Ameri- 
can history might have been shorter, but as they were so 
weak, a stronger government was possible. Thoughtful 
men saw that something must be done speedily, and the 
result was the Constitutional Convention of 1787, which 
marks the turning point in American history. The Con- 
vention was called to amend the Articles of Confedera- 
tion, but it adopted a new constitution entirely. For- 
tunately for other races, and for the American genera- 
tions the states sent delegations of their ablest men. 
From Massachusetts came Nathaniel Gorham, Rufus 
King, Elbridge Gerry and Caleb Strong. From New 
York came Alexander Hamilton, John Lansing, and 
Robert Yates; from Delaware, Gunning Bedford, Jr., 
George Read, and John Dickinson; from Pennsylvania, 
Jard Ingersoll, Robert Morris, Thomas Miffin, James 
Wilson, and Benjamin Franklin; from Virginia, James 



OF THE CONSTITUTION. 235 

Madison, Edmond Randolph, George Mason and George 
Washington; from New Jersey, William Paterson and 
Jonathan Jayton; from North Carolina, William Blount 
and Alexander Martin; from South Carolina, Pierce 
Butler, John Rutledge, Charles Pickney and Charles C. 
Pinckney; from Georgia, William Houston and Abra- 
ham Baldwin; from Connecticut, Roger Sherman and 
Oliver Ellsworth; from Maryland, Daniel Carroll and 
James McHenry; from New Hampshire, John Langdon 
and Nicholas Gilman. Rhode Island was not represented. 
Not all the delegates are here enumerated, but the names 
given indicate the high quality of the Convention, which 
met in Philadelphia, May 25, 1787. It did not complete 
its work until September 17th, all of its sessions being 
held in secret. 

George Washington was elected President, and it 
was in great measure due to the certainty that he would 
be the first executive of the United States that the Con- 
stitution was finally adopted. 

The strong government party, or the Whigs, later 
called the Federal party, headed by Alexander Hamilton, 
James Madison and John Jay, advocated the adoption 
of the Constitution, and their pens supplied much of the 
current political literature of that day. Against the 
Federal party, the Particularist Whigs, later called the 
Anti-Federal party, opposed every preliminary step look- 



236 BEFORE THE CONSTITUTION. 

ing to the adoption of the federal constitution and ad- 
hered to the rights of the States and those of local 
self-government. The Anti-Federalists party was not 
without popular orators and leaders. Patrick Henry and 
Samuel Adams took special pride in espousing the cause 
of the Anti-Federals. The war question between the 
Whigs and the Tories, or Colonial parties, — the former 
composed of patriots, the latter supporting the Crown — 
must have passed quickly away as living issues came up, 
though the newspapers and contemporaneous history 
show that the old taunts and battle cries were applied 
to the new situation with a plainness and virulence that 
must still be envied by the sensational and more bitterly 
partisan journals of our own day. To read these now, 
and some of our facts are gathered from such sources, 
is to account for the frequent use of the saying " the 
ingratitude of republics," for when partisan hatred could 
deride the still recent utterances of Henry before the 
startled assembly of Virginians, and of Adams in advo- 
cating the adoption of declaration, there must, at least 
to every surface view, have been rank ingratitude. Their 
good names, however, survived the struggle, as good 
names in American republics have ever survived. In 
politics the Teutonic and related races then as now, cha- 
racteristically hated with promptness and forgave with 
generosity. 



APPENDIX II 



APPENDIX II 



Constitution of the United States 



WE, THE PEOPLE of the United States, in order to form a 
more perfect union, establish justice, insure domestic tran- 
quility, provide for the common defence, promote the general 
welfare, and secure the blessings of liberty to ouselves and 
our posterity, do ordain and establish this Constitution for 
the United States of America. 

ARTICLE I. 

Section i. All legislative powers herein granted, shall be 
vested in a congress of the United States, which shall consist of 
a senate and house of representatives. 

Sec. 2. The house of representatives shall be composed of 
members chosen every second year by the people of the several 
states; and the electors in each state have the qualifications re- 
quisite for electors of the most numerous branch of the state 
legislature. 

No person shall be a representative who shall not have at- 
tained to the age of twenty-five years, and been seven years a 
citizen of the United States, and who shall not, when elected, be 
an inhabitant of that state in which he shall be chosen. 

(Representatives and direct taxes shall be apportioned among 
the several states which may be included within this union, ac- 
cording to their respective numbers, which shall be determined by 
adding to the whole number of free persons, including those 
bound to service for a term of years, and excluding Indians not 
taxed, three-fifths of all other persons. The clause included in 
brackets is amended by the fourteenth amendment, second sec- 
tion). The actual enumeration shall be made within three years 

239 



240 CONSTITUTION OF THE UNITED STATES. 

after the first meeting of the congress of the United States, and 
within every subsequent term of ten years, in such manner as they 
shall by law direct. The number of representatives shall not ex- 
ceed one for every thirty thousand, but each state shall have at 
least one representative, and until such enumeration shall be 
made, the State of New Hampshire shall be entitled to choose 
three, Massachusetts eight, Rhode Island and Providence Plan- 
tations one, Connecticut five, New York six. New Jersey four, 
Pennsylvania eight, Delaware one, Maryland six, Virginia ten, 
North Carolina five, South Carolina five, and Georgia three. 

When vacancies happen in the representation from any state, 
the executive authority thereof shall issue writs of election to fill 
such vacancies. 

The house of representatives shall choose their speaker and 
other officers; and shall have the sole power of impeachment. 

Sec. 3. The senate of the United States shall be composed of 
two senators from each state, chosen by the legislature thereof, 
for six years; and each senator shall have one vote. 

Immediately after they shall be assembled in consequence of 
the first election, they shall be divided as equally as may be into 
three classes. The seats of the senators of the first class shall 
be vacated at the expiration of the second year, of the second 
class at the expiration of the fourth year, and of the third 
class at the expiration of the sixth year, so that one-third may 
be chosen every second year; and if vacancies happen, by resig- 
nation or otherwise, during the recess of the legislature of any 
state, the executive thereof may ma^ce temporary appointments 
until the next meeting of the legislature, which shall then fill such 
vacancies. 

No person shall be a senator who shall not have attained to 
the age of thirty years, and been nine years a citizen of the United 
States, and who shall not, when elected, be an inhabitant of that 
state for which he shall be chosen. 

The vice-president of the United States shall be president of 
the senate, but shall have no vote, unless they be equally divided. 

The senate shall choose their other officers, and also a presi- 
dent pro tempore, in the absence of the vice-president, or when he 
shall exercise the office of president of the United States. 

The senate shall have the sole power to try all impeachments. 
When sitting for that purpose they shall be on oath or affirmation. 
When the president of the United States is tried, the chief justice 
shall preside; and no person shall be convicted without the con- 
currence of two-thirds of the members present. 



CONSTITUTION OF THE UNITED STATES. 24I 

Judgment in cases of impeachment shall not extend further 
than to removal from office, and disquaification to hold and enjoy 
any office of honor, trust, or profit, under the United States ; but 
the party convicted shall nevertheless be liable and subject to in- 
dictment, trial, judgment and punishment, according to law. 

Sec. 4. The times, places and manner of holding elections 
for senators and representatives, shall be prescribed in each state 
by the legislature thereof, but the congress may at any time by 
law make or alter such regulations except as to the places of 
choosing senators. 

The congress shall assemble at least once in every year, and 
such meeting shall be on the first Monday in December, unless 
they shall by law appoint a different day. 

Sec. 5. Each house shall be the judge of the elections, re- 
turns, and qualifications of its own members, and a majority of 
each shall constitute a quorum to do business; but a smaller num- 
ber may adjourn from day to day, and may be authorized to com- 
pel the attendance of absent members, in such manner, and under 
such penalties as each house may provide. 

Each house may determine the rules of its proceedings, pun- 
ish its members for disorderly behavior, and, with the concurrence 
of two-thirds, expel a member. 

Each house shall keep a journal of its proceedings, and from 
time to time publish the same, excepting such parts as may in 
their judgment require secrecy; and the yeas and nays of the 
members of either house on any question, shall, at the desire of 
one-fifth of those present, be entered on the journal. 

Neither house, during the session of congress, shall, without 
the consent of the other, adjourn for more than three days, nor 
to any other place than that in which the two houses shall be 
sitting. 

Sec. 6. The senators and representatives shall receive a com- 
pensation for their services, to be ascertained by law, and paid out 
of the treasury of the United States. They shall, in all cases, ex- 
cept treason, felony, and breach of the peace, be privileged from 
arrest during their attendance at the session of their respective 
houses, and in going to and returning from the same, and for any 
speech or debate in either house, they shall not be questioned in 
any other place. 

No senator or representative shall, during the time for which 
he was elected, be appointed to any civil office under the authority 
of the United States, which shall have been created, or the emolu- 
ment whereof shall have been increased during such time; and no 



242 CONSTITUTION OF THE UNvTED STATES. 

person holding any office under the United States, shall be a 
member of either house during his continuance in office. 

Sec. 7. All bills for raising revenue shall originate in the 
house of representatives; but the senate may propose or concur 
with amendments as on other bills. 

Every bill which shall have passed the house of representatives 
and the senate, shall, before it become a law, be presented to the 
president of the United States; if he approve he shall sign it, but 
if not, he shall return it, with his objections, to that house in 
which it shall have originated, who shall enter the objections at 
large on their journal and proceed to reconsider it. If, after such 
reconsideration two-thirds of that house shall agree to pass the 
bill, it shall be sent, together with the objections, to the other 
house, by which it shall likewise be reconsidered, and, if approved 
"by two-thirds of that house, it shall become a law. But in all such 
cases, the votes of both houses shall be determined by yeas and 
nays, and the names of the persons voting for and against the bill, 
shall be entered on the journal of each house respectively. If any 
bill shall not be returned by the president within ten days (Sun- 
days excepted) after it shall have been presented to him, the same 
shall be a law, in like manner as if he had signed it, unless the 
congress by their adjournment prevent its return, in which case 
it shall not be a law. 

Every order, resolution, or vote, to which the concurrence of 
the senate and house of representatives may be necessary (except 
on a question of adjournment) shall be presented to the president 
of the United States ; and before the same shall take effect, shall 
be approved by him, or being disapproved by him, shall be repassed 
by two-thirds of the senate and house of representatives, accord- 
ing to the rules and limitations prescribed in the case of a bill. 

Sec. 8. The congress shall have power: — 

To lay and collect taxes, duties, imposts, and excises, to pay 
the debts and provide for the common defence and general welfare 
of the United States; but all duties, imposts, and excises shall be 
iuniform throughout the United States; 

To borrow money on the credit of the United States; 

To regulate commerce with foreign nations, and among the 
several states, and with the Indian tribes; 

To establish an uniform rule of naturalization, and uniform 
laws on the subject of bankruptcies throughout the United States; 

To coin money, regulate the value thereof, and of foreign coin, 
and fix the standard of weights and measures; 

To provide for the punishment of counterfeiting the securities, 
and current coin of the United States; 



CONSTITUTION OF THE UNITED STATES. 243 

To establish post-offices and post-roads ; 

To promote the progress of science and useful arts, by securing 
for limited times to authors and inventors the exclusive right to 
their respective writings and discoveries ; 

To constitute tribunals inferior to the supreme court; 

To define and punish piracies and felonies committed on the 
high seas, and offences against the law of nations; 

To declare war, grant letters of marque and reprisal, and make 
rules concerning captures on land and water; 

To raise and support armies ; but no appropriation of money, to 
that use, shall be for a longer term than two years ; 

To provide and maintain a navy; 

To make rules for the government and regulation of the land 
and naval forces; 

To provide for calling forth the militia to execute the laws of 
the union, suppress insurrections and repel invasions ; 

To provide for organizing, arming and disciplining the militia, 
and for governing such part of them as may be employed in the 
service of the United States, reserving to the states respectively, 
the appointment of the officers, and the authority of training the 
militia according to the discipline prescribed by congress ; 

To exercise exclusive legislation in all cases whatsoever, over 
such district (not exceeding ten miles square) as may, by cession 
of particular states, and the acceptance of congress, become the 
seat of the government of the United States, and to exercise like 
authority over all places purchased by the consent of the legislature 
of the state in which the same shall be, for the erection of forts, 
magazines, arsenals, dock yards, and other needful building : — And 

To make all laws which shall be necessary and proper for car- 
rying into execution the foregoing powers, and all other powers 
vested by this constitution in the government of the United States, 
or in any department or officer thereof. 

Sec. 9. The migration or importation of such persons as any 
of the states now existing shall think proper to admit, shall not be 
prohibited by the congress prior to the year one thousand eight 
hundred and eight; but a tax or duty may be imposed on such 
importation, not exceeding ten dollars for each person. 

The privilege of the writ of habeas corpus shall not be sus- 
pended, unless when, in cases of rebellion or invasion, the public 
safety may require it. 

No bill of attainder or ex post facto law, shall be passed. 
No capitation or other direct tax shall be laid, unless in pro- 
portion to the census or enumeration hereinbefore directed to be 
taken. 



244 CONSTITUTION OF THE UNITED STATES. 

No tax or duty shall be laid on articles exported from any- 
state. 

No preference shall be given by any regulation of commerce 
or revenue to the ports of one state over those of another; nor 
shall vessels bound to or from one state be obliged to enter, clear, 
or pay duties in another. 

No money shall be drawn from the treasury, but in conse- 
quence of appropriations made by law; and a regular statement 
and account of the receipts and expenditures of all public moriey 
shall be published from time to time. 

No title of nobility shall be granted by the United States; and 
no person holding any office of profit or trust under them, shall, 
without the consent of the corijgress, accept of any present, emolu- 
ment, office or title, of any kind whatever, from any king, prince, 
or foreign state. 

Sec. 10. No state shall enter into any treaty, alliance, or con- 
federation; grant letters of marque and reprisal; coin money; 
emit bills of credit; make anything but gold and silver coin a 
tender in payment of debts; pass any bill of attainder, ex post 
facto law, or law impairing the obligation of contracts, or grant 
any title of nobility. 

No state shall, without the consent of the congress, lay any im- 
posts or duties on imports or exports, except what may be abso- 
lutely necessary for executing its inspection laws; and the net 
produce of all duties and imposts, laid by any state on imports or 
exports, shall be for the use of the treasury of the United States; 
and all such laws shall be subject to the revision and control of the 
congress. No state shall, without the consent of congress, lay any 
duty of tonnage, keep troops or ships of war in time of peace, enter 
into any agreement or compact with another state or with a foreign 
power, or engage in war, unless actually invaded, or in such im- 
minent danger as will not admit of delay. 

ARTICLE II. 

Section i. The executive power shall be vested in a president 
of the United States of America. He shall hold his office during 
the term of four years, and, together with the vice-president, chosen 
for the same term, be elected as follows: 

Each state shall appoint, in such manner as the legislature 
thereof may direct, a number of electors, equal to the whole num- 
ber of senators and representatives to which the state may be en- 
titled in the congress; but no senator or representative or person 



CONSTITUTION OF THE UNITED STATES. 245 

holding an office of trust or profit under the United States, shall 
be appointed an elector. 

(The electors shall meet in their respective states, and vote by- 
ballot for two persons, of whom one at least shall not be an in- 
habitant of the same state with themselves. And they shall make a 
list of all persons voted for, and of the number of votes for each; 
which list they shall sign and certify, and transmit sealed to the 
seat of government of the United States, directed to the president 
of the senate. The president of the senate shall, in the presence of 
the senate and house of representatives, open all the certificates and 
the votes shall then be counted. The person having the greatest 
number of votes shall be the president, if such number be a ma- 
jority of the whole number of electors appointed; and if there be 
more than one who have such majority, and have an equal number 
of votes, then the house of representatives shall immediately choose, 
by ballot, one of them for president; and if no person has a 
majority, then from the five highest on the list, the said house 
shall, in like manner, choose the president. But in choosing the 
president, the votes shall be taken by states, the representation 
from each state having one vote; a quorum for this purpose shall 
consist of a member or members from two-thirds of the states, 
and a majority of all the states shall be necessary to a choice. In 
every case, after the choice of the president, the person having 
the greatest number of votes of the electors shall be the vice- 
president. But if there should remain two or more who have equal 
votes, the senate shall choose from them, by ballot, the vice-presi- 
dent. This clause has been superseded by the twelfth amendment) . 

The congress may determine the time of choosing the electors, 
and the day on which they shall give their votes; which day shall 
be the same throughout the United States. 

No person except a natural-born citizen, or a citizen of the 
United States at the time of the adoption of this constitution, shall 
be eligible to the office of president; neither shall any person be 
eligible to that office who shall not have attained to the age of 
thirty-five years, and been fourteen years a resident within the 
United States. 

In case of the removal of the president from office, or of his 
death, resignation, or inability to discharge the powers and duties 
of the said office, the same shall devolve on the vice-president, and 
the congress may by law provide for the case of removal, death, 
resignation, or inability, both of the president and vice-president, 
declaring what officer shall then act as president, and such officer 



246 CONSTITUTION OF THE UNITED STATES. 

shall act accordingly, until the disability be removed, or a presi- 
dent shall be elected. 

The president shall, at stated times, receive for his services a 
compensation, which shall neither be increased nor diminished 
during the period for which he shall have been elected, and he shall 
not receive within that period any other emolument from the 
United States or any of them. 

Before he enter on the execution of his office, he shall take 
the following oath or affirmation : — 

" I do solemnly swear (or affirm) that I will faithfully execute 
the office of president of the United States, and will, to the best 
of my ability, preserve, protect and defend the constitution of the 
United States." 

Sec. 2. The president shall be commander-in-chief of the army 
and navy of the United States, and of the militia of the several 
states, when called into the actual service of the United States; he 
may require the opinion in writing of the principal officer in each 
of the executive departments, upon any subject relating to the 
duties of their respective offices ; and he shall have power to grant 
reprieves and pardons for offences against the United States, ex- 
cept in cases of impeachment. 

He shall have power, by and with the advice and consent of 
the senate, to make treaties, provided two-thirds of the senators 
present concur; and he shall nominate, and by and with the advice 
and consent of the senate, shall appoint ambassadors, other public 
ministers and consuls, judges of the supreme court, and all other 
officers of the United States, whose appointments are not herein 
otherwise provided for and which shall be established by law. But 
the congress may, by law, vest the appointment of such inferior 
officers as they think proper, in the president alone, in the courts 
of law, or in the heads of departments. 

The president shall have power to fill all vacancies that may 
happen during the recess of the senate, by granting commissions, 
which shall expire at the end of their next session. 

Sec. 3. He shall from time to time give to the congress infor- 
mation of the state of the union, and recommend to their consider- 
ation such measures as he shall judge necessary and expedient. He 
may, on extraordinary occasions, convene both houses, or either of 
them ; and in case of disagreement between them, with respect to 
the time of adjournment, he may adjourn them to such time as he 
shall think proper. He shall receive ambassadors and other public 
ministers. He shall take care that the laws be faithfully executed; 
and shall commission all the officers of the United States. 



CONSTITUTION OF THE UNITED STATES. 247 

Sec. 4. The president, vice-president, and all civil officers of 
the United States, shall be removed from office on impeachment 
for, and conviction of, treason, bribery, or other high crimes and 
misdemeanors. 

ARTICLE III. 

Section i. The judicial power of the United States shall be 
vested in one supreme court, and in such inferior courts as congress 
may, from time to time, ordain and establish. The judges, both of 
the supreme and inferior courts, shall hold their offices during 
good behavior ; and shall, at stated times, receive for their services 
a compensation which shall not be diminished during their con- 
tinuance in office. 

Sec. 2. The judicial power shall extend to all cases, in law 
and equity, arising under this constitution, the laws of the United 
States, and treaties made, or which shall be made, under their au- 
thority; to all cases affecting ambassadors, other public ministers, 
and consuls; to all cases of admiralty and maritime jurisdiction; to 
controversies to which the United States shall be a party; to con- 
troversies between two or more states, between a state and citi- 
zens of another state, between citizens of different states, between 
citizens of the same state claiming lands under grants of different 
states, and between a state, or the citizens thereof, and foreign 
states, citizens, or subjects. 

In all cases affecting ambassadors, other public ministers and 
consuls, and those in which a state shall be a party, the supreme 
court shall have original jurisdiction. In all other cases before 
mentioned, the supreme court shall have appellate jurisdiction, both 
as to law and fact, with such exceptions, and under such regula- 
tions as the congress shall make. 

The trial of all crimes, except in cases of impeachment, shall 
be by jury; and such trial shall be held in the state where the said 
crimes shall have been committed ; but when not committed within 
any state, the trial shall be at such place or places as the congress 
may by law have directed. 

Sec. 3. Treason against the United States shall consist only 
in levying war against them, or in adhering to their enemies, giving 
them aid and comfort. No person shall be convicted of treason 
unless on the testimony of two witnesses to the same overt act, 
or on confession in open court. 

The congress shall have power to declare the punishment of 
treason, but no attainder of treason shall work corruption of 
blood, or forfeiture, except during the life of the person attainted. 



248 CONSTITUTION OF THE UNITED STATES. 

ARTICLE IV. 

Section i. Full faith and credit shall be given in each state 
to the public acts, records, and judicial proceedings of every other 
state. And the congress may, by general laws, prescribe the man- 
ner in which such acts, records, and proceedings shall be proved, 
and the effect thereof. 

Sec. 2. The citizens of each state shall be entitled to all privi- 
leges and immunities of citizens in the several states. 

A person charged in any state with treason, felony, or other 
crime, who shall flee from justice, and be found in another state, 
shall, on demand of the executive authority of the state from which 
he fled, be delivered up, to be removed to the state having juris- 
diction of the crime. 

No person held to service or labor in one state, under the 
laws thereof, escaping into another, shall, in consequence of any 
law or regulation therein, be discharged from such service or labor, 
but shall be delivered up on claim of the party to whom such 
service or labor may be due. 

Sec. 3. New states may be admitted by the congress into 
this union ; but no new state shall be formed or erected within the 
jurisdiction of any other state; nor any state be formed by the 
junction of two or more states, or parts of states, without the con- 
sent of the legislatures of the states concerned, as well as of the 
congress. 

The congress shall have power to dispose of, and make all 
needful rules and regulations respecting the territory or other 
property belonging to the United States; and nothing in this con- 
stitution shall be so constructed as to prejudice any claims of the 
United States or of any particular state. 

Sec. 4. The United States shall guaranty to every state in this 
union, a republican form of government, and shall protect each of 
them against invasion; and on application of the legislature, or 
of the executive (when the legislature cannot be convened) against 
domestic violence. 

ARTICLE V. 

The congress, whenever two-thirds of both houses shall deem 
it necessary, shall propose amendments to this constitution, or, on 
the application of the legislature of two-thirds of the several states, 
shall call a convention for proposing amendments, which, in either 
case, shall be valid to all intents and purposes, as part of this con- 



CONSTITUTION OF THE UNITED STATES. 249 

stitution, when ratified by the legislatures of three-fourths of the 
several states, or by conventions in three-fourths thereof, 
as the one or the other mode of ratification may be proposed by 
the congress ; provided, that no amendment, which may be made 
prior to the year one thousand eight hundred and eight, shall in 
any manner affect the first and fourth clauses in the ninth section 
of the first article; and that no state, without its consent, shall be 
deprived of its equal suffrage in the senate. 

ARTICLE VI. 

All debts contracted, and engagements entered into, before the 
adoption of this constitution, shall be as valid against the United 
States, under this constitution, as under the confederation. 

This constitution, and the laws of the United States which 
shall be made in pursuance thereof, and all treaties made or which 
shall be made under the authority of the United States, shall be 
the supreme law of the land; and the judges in every state shall 
be bound thereby, anything in the constitution or laws of any 
state to the contrary notwithstanding. 

The senators and representatives before mentioned, and the 
members of the several state legislatuers, and all executive and 
judicial officers, both of the United States and of the several states, 
shall be bound by oath or affirmation, to support this constitution; 
but no religious test shall ever be required as a qualification to any 
office or public trust under the United States. 

ARTICLE VII. 

The ratification of the conventions of nine states, shall be 
sufficient for the establishment of this constitution between the 
states so ratifying the same. 

Done in convention, by the unanimous consent of the states present, 
the seventeenth day of September, in the year of our Lord 
one thousand seven hundred and eighty-seven, and of the 
independence of the United States of America the twelfth. In 
witness whereof, we have hereunto subscribed our names. 
(Signed by) 

George Washington, 

President and Deputy from Virginia, 
and by Thirty-nine Delegates. 



250 CONSTITUTION OF THE UNITED STATES. 

ARTICLES IN ADDITION TO AND AMENDMENT OF THE 
CONSTITUTION OF THE UNITED STATES OF AMERICA 

ARTICLE I. 

Congress shall make no law respecting an establishment of 
religion, or prohibiting the free exercise thereof; or abridging the 
freedom of speech, or of the press; or the right of the people 
peaceably to assemble, and to petition the government for a re- 
dress of grievances. 

ARTICLE II. 

A well regulated militia being necessary to the security of a 
free state, the right of the people to keep and bear arms shall not 
be infringed, 

ARTICLE IIL 

No soldier shall, in time of peace, be quartered in any house 
without the consent of the owner; nor in time of war, but in a 
manner to be prescribed by law. 

ARTICLE IV. 

The right of the people to be secure in their persons, houses, 
papers, and effects, against unreasonable searches and seizures, 
shall not be violated; and no warrants shall issue, but upon prob- 
able cause, supported by oath or affirmation, and particularly 
describing the place to be searched, and the persons or things to 
be seized. 

ARTICLE V. 

No person shall be held to answer for a capital, or otherwise 
infamous crime, unless on a presentment or indictment of a grand 
jury, except in cases arising in the land or naval forces, or in the 
militia, when in actual service, in time of war or public danger; 
nor shall any person be subject for the same offence, to be twice 
put in jeopardy of life or limb; nor shall be compelled, in any 
criminal case, to be a witness against himself, nor be deprived of 
life, liberty, or property, without due process of law; nor shall 
private property be taken for public use without just compensa- 
tion. 



CONSTITUTION OF THE UNITED STATES. 25 1 

ARTICLE VI. 

In all criminal prosecution, the accused shall enjoy the right 
to a speedy and public trial, by an impartial jury of the state and 
district wherein the crime shall have been committed, which dis- 
trict shall have been previously ascertained by law, and to be in- 
formed of the nature and cause of the accusation; to be con- 
fronted with the witnesses against him; to have compulsory pro- 
cess for obtaining witnesses in his favor; and to have the assistance 
of counsel for his defence. 

ARTICLE VII. 

In suits at common law, where the value in controversy shall 
exceed twenty dollars, the right of trial by jury shall be preserved; 
and no fact, tried by a jury, shall be otherwise re-examined in any 
court of the United States, than according to the rules of the 
common law. 

ARTICLE VIII. 

Excessive bail shall not be required, nor excessive fines im- 
posed, nor cruel and unusual punishments inflicted. 

ARTICLE IX. 

The enumeration in the constitution, of certain rights, shall 
not be construed to deny or disparage others retained by the people. 

ARTICLE X. 

The powers not delegated to the United States by the constitu- 
tion, nor prohibited by it to the states, are reserved to the states 
respectively, or to the people. 

ARTICLE XL 

The judicial power of the United States shall not be construed 
to extend to any suit in law or equity, commenced or prosecuted 
against one of the United States by citizens of another state, or by 
citizens or subjects of any foreign state. 



252 CONSTITUTION OF THE UNITED STATES. 

ARTICLE XII. 

Section i. The electors shall meet in their respective states 
and vote by ballot for president and vice-president, one of whom, 
at least, shall not be an inhabitant of the same state with them- 
selves; they shall name in their ballots the person voted for as 
president, and in distinct ballots the person voted for as vice- 
president; and they shall make distinct lists of all persons voted 
for as president, and of all persons voted for as vice-president, and 
of the number of votes for each, which lists they shall sign and 
certify, and transmit sealed to the seat of government of the United 
States, directed to the president of the senate: — the president of 
the senate shall, in the presence of the senate and house of repre- 
sentatives, open all the certificates, and the votes shall then be 
counted : — the person having the greatest number of votes for 
president, shall be the president, if such number be a majority of 
the whole number of electors appointed; and if no person have 
such majority, then from the persons having the highest numbers, 
not exceeding three, on the list of those voted for as president, 
the house of representatives shall choose immediately, by ballot, 
the president. But in choosing the president, the votes shall be 
taken by states, the representation from each state having one 
vote ; a quorum for this purpose shall consist of a member or 
members from two-thirds of the states, and a majority of all the 
states shall be necessary to a choice. And if the house of repre- 
sentatives shall not choose a president, whenever the right of choice 
shall devolve upon them before the fourth day of March next fol- 
lowing, then the vice-president shall act as president, as in the case 
of the death or other constitutional disability of the president. The 
person having the greatest number of votes as vice-president, shall 
be the vice-president, if such number be a majority of the whole 
number of electors appointed; and if no person have a majority 
then from the two highest numbers on the list, the senate shall 
choose the vice-president; a quorum for the purpose shall consist 
of two-thirds of the whole number of senators, and a majority of 
the whole number shall be necessary to a choice. But no person 
constitutionally ineligible to the office of president, shall be eligible 
to that of vice-president of the United States. 

ARTICLE XIII. 

Section i. Neither slavery nor involuntary servitude, except 
as a punishment for crime, whereof the party shall have been duly 



CONSTITUTION OF THE UNITED STATES. 253 

convicted, shall exist within the United States, or any place subject 
to their jurisdiction. 

Sec. 2. Congress shall have power to enforce this article by 
appropriate legislation. 

ARTICLE XIV. 

Section i. All persons born or naturalized in the United 
States, and subject to the jurisdiction thereof, are citizens of the 
United States, and of the state wherein they reside. No state shall 
make or enforce any law which shall abridge the privileges and 
immunities of citzens of the United States; nor shall any state 
deprive any person of life, liberty, or property, without due process 
of law; nor deny to any person within its jurisdiction the equal 
protection of the laws. 

Sec. 2. Representatives shall be apportioned among the sev- 
eral states according to their respective numbers, counting the 
whole number of persons in each state, excluding Indians not 
taxed. But when the right to vote at any election for the choice 
of electors for president and vice-president of the United States, 
representatives in congress, the executive and judicial officers of a 
state, or the members of the legislature thereof, is denied to any 
of the male inhabitants of such state, being twenty-one years of 
age, and citizens of the United States, or in any way abridged, 
except for participation in rebellion or other crime, the basis of 
representation therein shall be reduced in the proportion which the 
number of such male citizens shall bear to the whole number of 
male citizens twenty-one years of age in such state. 

Sec. 3. No person shall be a senator or representative in 
congress, or elector of president and vice-president, or hold any 
office, civil or military, under the United States, or under any 
state, who, having previously taken an oath, as a member of con- 
gress, or as an officer of the United States, or as a member of any 
state legislature, or as an executive or judicial officer of any state, 
to support the constitution of the United States, shall have engaged 
in insurrection or rebellion against the same, or given aid or 
comfort to the enemies thereof. But congress may, by a vote of 
two-thirds of each house, remove such disability. 

Sec. 4. The validity of the public debt of the United States, 
authorized by law, including debts incurred for payment of pen- 
sions and bounties for services in suppressing insurrection or re- 
bellion, shall not be questioned. But neither the United States 
nor any state shall assume or pay any debt or obligation incurred 
in aid of insurrection or rebellion against the United States, or 



254 CONSTITUTION OF THE UNITED STATES. 

any claim for loss or emancipation of any slave; but all such debts 
obligations, and claims shall be held illegal and void. 

Sec. 5. The congress shall have power to enforce, by ap- 
propriate legislation, the provisions of this article. 

ARTICLE XV. 

Section i. The right of citizens of the United States to vote 
shall not be denied or abridged by the United States or by any 
state on account of race, color, or previous condition of servitude. 

Sec. 2. The congress shall have power to enforce this article 
by appropriate legislation. 



The first ten of these amendments were proposed by congress 
by resolution of 1789, and were ratified before 1791. The eleventh 
amendment was proposed by congress by resolution of the year 
1794, and was ratified before 1796. The twelfth article was pro- 
posed by congress, by resolution of October, 1803, and was ratified 
before September, 1804. The thirteenth article was proposed by 
congress, by resolution, of the year 1865, and was ratified before 
December 18, 1865. The fourteenth article was proposed by con- 
gress, by resolution, of the year 1866, and was ratified before the 
20th day of July, 1868. The fifteenth article was proposed by con- 
gress, by resolution, of the year 1869, and was ratified before the 
30th day of March, 1870, 



INDEX 



INDEX. 



Achean League, 211-212. 

Action, 148, 149. 

Admiralty Jurisdiction, 158-165. 

Admission of States, 62, 248. 

Aliens, 55, 57, 62, 64, 158 

Ambassadors, 129, 152, 158 

Amendments to U. S. Constitu- 
tion, 250 

American Women, 109 

Amphictyonic Council, 211-212. 

Ancient History, 219 

Appellate Jurisdiction, 148, 149 

Appointment, 25, 130, 134 

Apportionment of Representa- 
tives, 13, 21, 23, 253 

Apportionment of Tax, 28, 33, 
243, 253 

Appropriations, 244 

Arms, 250 

Army, 97, no, 243 

Arrest, 148, 216, 217, 241 

Attainder, 2zt4 

Athens, 212 

Authors, 34, 80, 243 

Bail, 251 
Ballot, 252 
Banks, 35, 86 
Bankruptcy, 65, 66, 242 
Bill, 242 

Bill of Rights, 216-217 
Bill of Credit, 244 
Books, 80 



Boundary Questions, 167-168 

Bridge, 42 

Borrow Money, 36, 242 

Canals, 42 

Carriers, 161 

Check and Balance, 27-28, 133- 

134 
Christianity, 215 
Church and State, 224, 249, 250 
Circuit Court of the United 

States, 147-149, 170 
Citizens, 54, 62, 65, 206, 253 
Civil Officers, iii, 246-247 
Coining Money, 68, 242 
Collective Naturalization, 62 
Collisions, 160 

Colonization of America, 219-220 
Commerce, 47 
Common Law, 56, 68, 82, 150, 163, 

217, 251 
Compensation of Judges, 142, 

247 
Compensation of President, 246 
Compensation of Representatives, 

241 
Compensation of Senators, 241 
Compensation of Property, 250 
Confederation, 212, 234 
Congress, 21, 100, 119, 120, 122, 

239 
Constitution, 204, 205, 214, 239- 



257 



258 



INDEX. 



Consuls, 129, 152-158, 247 
Continental Congress, 230 
Contracts, d^, 120, 163, 244 
Controversies, 162, 165-166, 221 
Copyright, 80, 243 
Corporation, ig6 
Counsel, 251 
Counterfeiting, ^2, 2.A,2 
Courts, 141-207 
Crimes, 248, 251 
Criminal Proceedings, 176 
Currency, 68-70 

Debts, 38, 68, 69-70, 253 
Declaration of Independence, 232, 

235 
Declaration of War, 231, 232 
Delegation of Powers, 7, 8, 10 
Demands, 175 
Department of Government, no, 

127, 141 
Despotism, 2)Z 
Direct Tax, 35 
Discretionary Power, 100 
District of Columbia, 177, 243 
District Court of the United 

States, 152-158, 162 
Diverse Citizenship, 176 
Drummers, 52 
Due Process of Law, 198 
Duties and Imports, 28-32 

Election, 23, loi, 240, 241, 253 
Electors, 21, 239, 244-245, 252, 

253 
Eleventh Amendment, 181 
Eligibility, 107, 109 
Embargo, 42 
England, 3, 16, 31, 56, 158, 217, 

228 
Europe, 215 
Evidence, 175 
Excise Taxes, 28-32 
Exclusive Privileges, 80, 84 



Executive Department, 107, no, 

131 
Exports, 41-44, 244 
Ex Post Facto Law, 97, 244 
Expulsion, 57, 65 
Extradition, 171 

Faith and Credit, 175 
Fall of Rome, 214-215 
Federal Courts, 66, 162 
Federal Government, 128 
Felonies on High Seas, 87 
Fifth Amendment, 204, 250 
First Amendment, 183, 250 
Fisheries, 164 
Flag, 219 

Foreign Commerce, 41-44, 46-49 
Foreign Judgment, 172 
Foreigners, 65, 148 
Fourteenth Amendment, 148, 253 
Fourth Amendment, 187, 250 
Freedom of Religion, 183-186 
Fugitive from Justice, 171, 248 

Germans, 217 
Grecian Republics, 151 
Government, 7, 8, 10 
Governor, 6 
Grants, 8, 2>7, 171. 244 
Great Britain, 4-16 
Great Lakes, 93, 227 

Habeas Corpus, 217, 243 

Health Law, 53 

High Seas, 51, 87-93 

Highways, 93 

House of Representatives, 21-28 

Immigration, 64, 243 
Immunities, 54, 55, 201, 229, 248 
Impeachment, 97, in, 112 
Importers, 48, 243 
Imposts, ^2, 244 
Injunction, 45 



INDEX. 



259 



Insolvent Laws, 66-67 
Inspection Laws, 53, 244 
Insurrection, 97-99 
International Law, 98, 167, 171, 

182 
Interstate Commerce, 41-47 
Intoxicating Liquors, 61-62 
Invasion, 98, 99 
Inventions, 80, 82, 87 

Japan, 4, 5, 15, 16 

Jeopardy, 143, 250 

Judges, 9, 241, 248, 249 

Judgments, 100, 143, 161, 175, 241 

Judiciary, 143, I44-I49, 207 

Jury, 157, 251 

Jurisdiction, 147, 161, 163, 253 

Law of the Land, 249 

Law of Nations, 88, 167 

Legal Tender, 69 

Legislative Department, 239 

Legislative Powers, 32 

Liberty, 24, 143, 189, 250, 253 

License, 41, 45, 47, 5i 

Life, 250, 253 

Limitation, 21, 34, 85, 117-118 

Liquor, 51 

Local Self Government, 53, 86, 

150 
Lotteries, 79, 203 

Magna Charta, 216 
Mails, 76, 79 
Majority. 33, 252 
Maritime Jurisdiction, 158 
Measures and Weights, 68, 72 
Messages of the President, 128- 

129, 246 
Middle Age, 217 
Militia, 243, 250 
Municipal Law, 171 

Nation, 54, 92, 167 
National Banks, 35, 38 



Natural Born Citizen, 55, 107, 245 

Naturalization, 253 

Navigable Waters, 160, 250 

Navigation, 43, 44, 45 

Navy, no, 243, 246 

New State, 248 

Newspapers, 79 

New World, 219 

Non-Resident, 67 

Nobility, 228, 244 

Obligation of Contract, 67, 179, 

244 
Office, 108, 109, 241, 246 
Oppressive Measure, 24 
Original Jurisdiction, 153, 154, 

157, 176 
Omitakara, 4 

Papers, 250 

Pardons, 112 

Parliament,, 14, 112 

Passengers, 52, 162 

Patents, 80 

Penal Proceeding, 176 

People, The, 3-17, 251 

Petition, 229, 230, 250 

Petition of Right, 216 

Piracy, 89 

PoHce Power, 53, 76 

Political Question, 167, 168, 171 

Post Office and Post Roads, 76 

President, 99, ^07-137, 207 

Press, 76, 250 

Privilege, 32, 54, 201, 229, 248 

Property, 35, 85, 86, 124 

Public Ministers, 129, 158, 247, 

252-253 
Punishments, 251, 252 

Qualifications, 21-28, 107 
Quartering Soldiers, 250 

Race, 57, 254 
Railroads, 42 



26o 



INDEX. 



Rebellions, 97-99, 223 

Records, 248 

Reformation, 218 

Religious Liberty, 183-186, 223- 

225, 250 
Removal from State to Federal 

Courts, 161, 163 
Representatives, 137, 249 
Reprieves, 112 
Republican Form of Government, 

21, 127, 204, 248 
Revenue, 242 
Revolution, 69, 97-99 
Roman Law, 212-215 

Seamen, 189 

Searches and Seizures, 187, 230, 

231, 250 
Secrecy, 241 
Servitude, 254 
Senator, 25, 131, 133, 240 
Separation of Powers, 133, 141- 

142, 181-182 
Seventh Amendment, 251 
Sixth Amendment, 251 
Slave Trade, 221, 252-253 
Sovereign Powers, 172, 200 
Sovereign State, 26, 71, 170, 177, 

181, 251 
Speech, 250 
Speedy Trial, 251 
Stamp Act, 52, 229 



State Court, 149-152, 171, 175 

State Law, 47, 48, 124, 165, 171 

State Legislature, 25, 83 

Suffrage, 22, 54, 108, 205 

Sunday, 129, 242 

Supreme Court, 142, 144, 149, 247 

Supreme Laws, 249 

Surrender of Offenders, 171, 248 

Taira Clan, 220 

Taxation, 28-33 

Telegraph, 42 

Teutonic Influence, 214-216, 222 

Thirteenth Amendment, 190, 252 

Thirteen American Colonies, 227 

Treason, 97, 247 

Treaties, 63, 118-119 

Tyranny, 24, 28, 10 1 

Uniform Rule, 33, 65, 242 
Uniform Lav/s, 54, 242 

Vacancies, 131, 240 
Veto Power, 129, 242 
Vice-President, no, 240, 245, 252 

War, 93. no, 244 

Woman Suffrage, 203 

Writs of Certiorari, 170 

Writs of Habeas Corpus, 217, 243 

Writs of Mandamus, 171 

Witness, 251 



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